What You Need to Know About Estate Law

wills and estate law in Ontario

Disclaimer: This article is intended for the purposes of providing information on wills and estates law only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

What are you leaving behind? No matter who we are, we all think about our legacies. What are we leaving behind, and how will our loved ones remember us?

Regardless of what we are leaving behind, we want to make sure that we have a plan. A poor or non-existent estate plan leaves a legacy of stress, paperwork and expense. A well-planned estate adds comfort and stability in a time when it is much needed.

We know that you treasure and cherish your loved ones. That is why we think that a well-thought-out estate plan is truly the best gift that you can give your family. 

An estate plan is a set of documents that detail how you want your assets to be distributed after you die. This can include your house, savings, investments, and personal belongings. Your estate plan can also designate a guardian for your minor children or other dependents.

An estate is a reflection of your life, and each one is different. There is no “one-size-fits-all” so to have an estate plan that truly reflects what is important to you, it is essential to get sound legal advice.

At Beeksma Law, we believe everyone should be empowered to understand how the law affects them. We encourage you to book a call with our team to discuss your estate.  Learn more by scheduling your consultation here.

Your Guide to Wills and Estates Law in Ontario

In the meantime, this article will outline a number of subjects related to estate law to help you understand the basics, namely:

  • What is estate law?
  • What is a will? Why do I need one?
  • How often should you update your will?  
  • What makes a will valid?
  • What is an executor and how should I choose one?
  • What is probate?
  • What is a power of attorney? 
  • What is a certificate of pending litigation? 
  • What is guardianship?
  • Recent Changes to the Succession Law Reform Act
  • Make sure your estate planning is right for you 

What is estate law? 

Simply put, estate law deals with how a person makes decisions about how others will care for themselves and their property. Commonly, we think of estate law as carrying out someone’s wishes after they have passed away. While that is a large part of estate law, it also involves managing someone’s affairs while they are still alive if they cannot do so themselves.

Estate law can be both transactional (meaning it involves drafting documents) and litigation (meaning settling any disputes).

The information below first deals with estates in the event that someone passes away, and then about powers of attorney and handling someone’s affairs while they are still alive.

What is a will, and why do I need one? 

A will is a legal document that states how someone wants their property to be distributed after they die. It is important to have a will because, without one, the government will decide how your property is distributed according to intestacy laws.

This means that if you die without a will, your property will go to your closest relatives, even if that was not your preference.

It is important to note that a will does not just deal with physical property. It can also be used to appoint a guardian for minor children and express your wishes for funeral arrangements.

How often should you update your will? 

This truly depends on you and your life. You would definitely want to update your will when you experience any major life changes. This can be personal changes, like getting married and having children, or big purchases, like buying a home. 

You should also review your will every few years to make sure that it still accurately reflects your wishes.

What makes a will valid? 

Unless a will is handwritten (see below for information on handwritten, or holograph, wills), the requirements for a valid will are: 

  • It must be a physical, hard copy, and not in a digital format.
  • The person making the will must be over 18, unless they are married, or are a parent. 
  • The person making the will (the testator) must be of sound mind.
  • There must be witnesses to the testator signing the will. Those witnesses cannot be an executor (or his/her spouse) or a beneficiary (or his/her spouse).  Virtual witnessing is possible if one witness is a lawyer or licensed paralegal.
  • The signatures must be at the end of the will.

Can a handwritten will be valid?

Yes – if certain conditions apply. Holograph wills do not require witnesses and only need to be signed by the testator. It must also be entirely in the testator’s handwriting (no typewritten portions) and clearly not be a draft.

It is up to the person seeking to deem the holograph will valid to prove that it meets those requirements.

If the handwritten will is deemed invalid, the previous will would be used, or if there is none, then as if the person died intestate (or without a will).

What should I do with my signed will?

When it comes to storing your estate documents, the key is making it easy for your executor to find them quickly and securely once you’re no longer around. A practical choice for many is getting a fire and waterproof file folder, which is both affordable and safe, and keeping it at home.

The trick is to share the location only with your designated executor, sparing the need to inform other family members or beneficiaries.

Although some might consider using a safety deposit box, it’s not the best idea. In case of incapacitation, your executor could face a tricky situation, having to prove their right to access the box when the necessary proof is actually inside it.

What is an executor or estate trustee?

Simply put, the executor is the person (or people) who will be responsible for carrying out the wishes set out in the will. You may see two terms: executor or estate trustee – these terms are interchangeable. The executor may be named in the will, but if not, the court will appoint one.

  • The duties of an executor include:
  • Making funeral arrangements
  • Determining the value and managing the distribution of your assets, as outlined in your will
  • Applying for probate
  • Preparing an accounting of the estate assets
  • Filing the tax returns and applying for the Certificate of Clearance
  • Paying off any debts or taxes owed by your estate before distributing the remaining assets
  • Keeping accurate records

Who can be an executor? 

To be an executor in an Ontario, you must be over 18 and have the capacity to act. That’s it. They do not need to be a relative, or live in Ontario. 

You can appoint more than one executor, although you will want to make sure that any co-executors can work well together.  You can also appoint a lawyer or another professional, to act as your executor.

In addition to executors, you would be wise to name a backup executor. That person would be your executor if your first choice is unwilling or unable to take on this task.

How should you choose an executor? 

As you can see, being an executor is a significant role and requires a lot of time and energy. Therefore, you want to choose your executor wisely.

Ask yourself:

  • Who do you trust to follow your final wishes?
  • Who is organized and detail-oriented?
  • Who has the time to commit to this role?

What is a beneficiary and what rights do beneficiaries have? 

A beneficiary is a person who is entitled to receive assets from a will or an insurance policy.

If you die without a will, your spouse and/or children are automatically considered beneficiaries and are entitled to receive your estate. In the absence of a spouse or children, your parents or other close relatives may be considered beneficiaries.

Beneficiaries have the right to:

  • Receive your bequest from the executor as soon as he or she is able to release it. 
  • Be notified when the estate executor applies to court for a Certificate of Appointment of Estate Trustee, also called probate
  • Ask questions about the original assets of the estate as well as ongoing accounting of the estate

What is probate?

Probate is the legal procedure to ask the court to:

  • give a person the authority to act as the estate trustee of an estate;
  • confirm the authority of the person named as executor in the will; and
  • formally approve that the deceased’s will is their valid last will.

What is a certificate of pending litigation (CPL) and when should you use it? 

A court will issue a CPL and have it registered on title to a property. It gives notice that there is a claim related to the property underway, and prohibits anyone from selling or mortgaging the property.

You may need one if your rights to property are being challenged, and you want to protect them. For example, there may be disagreements about an estate’s beneficiaries, or what is included in the estate.

What is a power of attorney? 

A power of attorney gives someone the power to make decisions on your behalf.

There are two kinds of power of attorney: a power of attorney for property and a power of attorney for personal care. 

A power of attorney for property relates to how your property is handled and cared for if you become incapable of managing it yourself. However, a power of attorney for personal care comes into effect if you become incapable of making decisions about your own health care and personal welfare.

You can name the same person to be your attorney for both property and personal care, or you can name different people. You can revoke a power of attorney at any time, as long as you are still mentally capable, but it will automatically become invalid when you die.

What is guardianship?

Guardianship is the process by which someone assumes the decision-making responsibilities of an incapable adult.

Mental incapacity means someone cannot make decisions for themselves due to illness or injury. While that may sound vague, it is determined by a specific class of specially trained professionals called capacity assessors.

There are two areas where guardianship may be needed: property or personal care. A person may be capable of making some decisions and not others so the guardian would be limited to the decisions that an incapable person cannot make, as determined by the courts.

Guardianship applications are brought before the courts if:

  • a person does not have a guardian and requires one;
  • the Office of the Public Guardian and Trustee has been appointed as a guardian, and you would like to replace them.

Make sure your estate planning is right for you 

Your estate plan should reflect your unique situation, the composition of your family and other circumstances. You should review it regularly to make sure it still meets your needs.

While there are will kits available,  it is always advisable to have a lawyer prepare your will so it meets all the legal requirements and correctly reflects your wishes.

An up-to-date will, paired with other key estate planning documents, can give you comfort, knowing that your loved ones will be cared for according to your wishes.

Estate planning can be a complex and daunting task, but it doesn’t have to be. Our team can help you navigate the process and ensure that your wishes are carried out. Contact us today to get started.

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