FAQ's Wills |
- What if I don't have a Will?
- Can I avoid making a Will by owning everything jointly?
- What about handwriting my Will or using a standard Will form from a store?
- How are my Assets disposed of?
- What does an Executor do?
- What does a Guardian do?
- How do I ensure my funeral and burial wishes will be followed?
- How do I make a specific bequest?
- Where should I keep my will?
- Who inherits my estate if there is no will?
- Are there any restrictions on who can make a Will ?
- What is the function of an " Executor " or " Estate Trustee" ?
- Who can be appointed as an Executor or Estate Trustee ?
- Can a Will be changed after it is signed ?
- What effect does marriage or divorce have on the terms of a Will ?
- How can my Will protect my young children ?
- How do taxes impact on my Will ?
- Why should you see a lawyer to draft your Will?
- How much will it cost to have my Will drafted?
What if I don't have a Will?
If at the time of your death, you do not have a Will, your estate will be distributed according to Ontario's intestate succession law. A person who dies without a Will dies "intestate".
Under the Ontario law:
the person appointed may be decided arbitrarily and may not be the person that you would have chosen immediately after your death, no one will be able to handle your affairs until the Court has appointed someone to be the Estate Trustee.
Without a Will:
your estate is divided into shares that may not be what you want; relatives who you do not want to inherit may receive a share of your estate; your estate will likely have to cover the cost of an Estate Trustee's bond (a premium must be paid to an insurance company) which would not be necessary had you appointed an Estate Trustee in a Will only your married spouse and children who are related by blood will receive anything from your Estate stepchildren receive nothing if you have no spouse or children, your parents will inherit your estate if you are separated but not divorced and have not signed a separation agreement, your separated spouse will inherit from you a common law spouse will get nothing other than support but only if she or he was entitled to it at the time of your death and if a court approves the request for support a same-sex partner will get nothing the shares of children under the age of 18 will have to be held and managed by the Public Guardian and Trustee; the shares will be turned over to them when they reach 18, regardless of their ability to handle such assets if you do not have any living relatives or if none can be found, your estate will go to the government.
Can I avoid making a Will by owning everything jointly?
In some cases, this may be possible but there are a number of reasons why it may not work some things cannot be owned jointly.
The time and cost to change everything to joint names may be more costly than making a Will.
If at the time of your death, you are separated but there is no separation agreement, assets held jointly with your spouse will become your spouse's assets.
If you are married and both you and your spouse die without children, the assets of both spouses will go to the family of the last spouse to die.
What about handwriting my Will or using a standard Will form from a store?
A Will that is entirely in your own handwriting is called a holographic Will and is valid as long as it is completely in your own handwriting, signed and dated at the end. There is no need for witnesses.
A holographic Will may be a short-term solution if there is not enough time to do a proper Will.
However, you should be aware that such a Will could create problems. If the Will must be submitted to Court for probate after your death, a sworn statement from someone such as your Bank Manager is necessary to prove that the writing and signature are actually yours. Often, a holographic Will does not address many of the issues which have been discussed above with sometimes serious consequences.
The standard Will forms sold in stationary stores can create problems and provide a false sense of security. For example, a Will form which is partly pre-printed and not witnessed is not a valid holographic Will. Although there may be handwritten portions, any preprinted parts will be ignored by the Court. In addition, such Will forms rarely provide enough information to address each person's particular situation.
The result can be expensive legal bills paid by your estate should your heirs be forced to ask a Court to determine exactly what you wanted done with your estate.
How are my Assets disposed of?
Assets are usually left to your spouse if he/she survives you by 30 days (this is to provide for common accidents); if both spouses are dead, your assets may be left to your children; if the children are too young, a trust is set up to look after them; if there is no spouse nor children,
your assets can be left to family, friends or charity.
What does an Executor do?
The executor (sometimes called the "estate trustee") is the person named in your Will who will execute or administer your estate.
The Executor is responsible for your funeral, payment of debts and income tax, and carrying out the terms of your will and selling or transferring your assets to your beneficiaries.
The Executor may hold the shares of your estate for your children in which case he is called your trustee.
The executor is commonly your spouse and an alternate is usually named in case the primary spouse is dead or unable to act.
The alternate executor is often an adult child or a friend or relative. Lawyers, accountants and
trust companies will also act as executors but they usually get paid for their work.
Your executor and trustee must be someone in whom you have faith and trust!
What does a Guardian do?
This is the person named in will to raise your children under the age of 18. The proper name is custodian.
The appointment of a guardian helps to avoid family disputes and provides for your children's
care and welfare.
The appointment is binding for 90 days unless a court sets it aside; after the 90 days, the court
can confirm it, but this is seldom necessary.
How do I ensure my funeral and burial wishes will be followed?
Tell your wishes to your executor before you die because it is too late when the will is read
after the funeral!
How do I make a specific bequest?
These are gifts of specific items, e.g., jewelry to children, money to church, etc. They can be
set out in your will but many people make their own informal, non-binding list for sentimental items. Remember to exercise some caution with handwritten lists - these can revoke your will!
Where should I keep my will?
The original Will should be stored in a safety deposit box or with your lawyer. It's not a good
idea to keep it at home where it may be lost or destroyed. Your lawyer can provide you with a copy to keep at home,
Who inherits my estate if there is no will?
Ontario Government Formula: Rules of Inheritance: If the following people survive: they will inherit:
The spouse only (this does not include common law spouses!) Everything.
Lawful spouse and one child (including illegitimate children) the spouse inherits the first
$200.000 and the rest, if any, is divided equally between the spouse and the child.
Lawful spouse and more than one child (including illegitimate children) the spouse inherits the
first $200,000; the rest of the estate, if any, is divided 1/3 to the spouse and the rest equally amongst the children only.
No spouse: the estate is divided equally amongst the children. If any children predeceased,
their children will inherit their share.
Parents only: no children and no lawful spouse, the surviving parents share equally, Brothers
and sisters only: no lawful spouse, children or parents, the brothers and sisters share equally;
if any died before the deceased, their children will inherit their share equally.
Nephews and nieces only: no spouse, no children, no parents, no brothers and sisters those nephews and nieces alive at the time of the death share equally.
Next of kin: no spouse, no children, no brothers or sisters, no nephews or nieces, if there are grandparents, they share equally, otherwise uncles and aunts.
If none of these, then cousins equally.
None of the above: relative government of Ontario.
Note to readers: The above is a synopsis of the Rules of Intestacy set out in the Succession
Law Reform Act, R.S.O. 1990 c.26
Note also that a spouse may have an equalization claim under the Family law Act, Ontario.
Are there any restrictions on who can make a Will ?
An individual who is over the age of 18 years and of sound mind can make a legally
enforceable Will.
What is the function of an " Executor " or " Estate Trustee" ?
When you are discussing your Will with your lawyer, you will be asked to provide the name
of a trusted person who will be competent to look after the disposition of your assets after
your death. This person is usually referred to as the Executor or the Estate Trustee.
Who can be appointed as an Executor or Estate Trustee ?
The law requires the person to be over 18 years of age and of sound mind. You are also
permitted to name any beneficiary under your Will to act as your Executor or Estate Trustee.
If you do not have anyone that you can trust with this important task, you can often appoint
your lawyer to act as the Executor or Estate Trustee.
Can a Will be changed after it is signed ?
Yes. Your Will can be amended or revoked at any time before your death provided you
continue to be of sound mind. When you amend your Will without actually having a new Will prepared, your lawyer will draft and have you sign a document called a " Codicil ".
What effect does marriage or divorce have on the terms of a Will ?
A. The law of Ontario specifies that a Will is automatically revoked by marriage unless the
Will specifically states that it is being made in contemplation of a particular marriage. With
respect to divorce, unless a contrary intention is expressed, an order of divorce will revoke
the provisions in the Will which favour the former spouse.
How can my Will protect my young children ?
A. You can instruct your lawyer to include a clause creating a trust for your children to be
used for educational or other purposes. The child's share of your estate can be held in trust
until he or she reaches a certain specified age. During that time, the Trustee can be given
authority to use the funds in the trust for the benefit of the child.
How do taxes impact on my Will ?
In the Province of Ontario there are no succession duty or gift taxes. However, when a person
dies the estate will have to concern itself with income and capital gains tax. Often though,
these taxes can be kept to a minimum or deferred by using arrangements permitted by the
Income Tax Act and a skillfully drawn Will. Be certain to retain a lawyer for this issue.
Why should you see a lawyer to draft your Will?
You require these services to be performed skillfully, with very little risk and for that reason
you would be wise to retain the services of an experienced lawyer in drafting your Will.
Drafting a Will involves decisions that require significant skill and judgment which comes only
with years of study and training.
How much will it cost to have my Will drafted?
It does not cost much to have your Will drafted and the actual cost will depend on how
complicated the terms of your Will are. In the long run it will provide you and your family with substantial peace of mind.
This information is a brief summary for information purposes only and is applicable only in the Province of Ontario. It is not intended to be legal advice. Full and complete legal advice can only
be given by a lawyer who has detailed information about your individual circumstances.
