Introduction to Wills and Estates

A properly planned will is extremely important to clearly communicate your wishes. Wills provide a clear way for you to ensure your loved ones are provided for and your assets are protected. Planning a will allows your true intentions to be communicated.

Probate (now called certificate of appointment for estate trustee) is a procedure to request the court give a person the authority to act as the estate trustee and formally approve that your will is in fact your last valid Will and Testament. Without a will, the process of naming an Estate Trustee is dictated by a priority system that is much more costly and onerous. Further, bond is generally required to be posted which can require up to two personal securities.

It is also important to plan how your assets will be controlled while you are still alive. A Power of Attorney (“POA”), authorizes another person to make decisions on your behalf when you no longer have capacity. An attorney has a fiduciary duty to act in your best interest and in accordance with the law. You can only appoint a POA when you have capacity. Once you lose capacity those who intend to provide care for you must apply through the courts for Guardianship which takes time and wastes money that would otherwise make up your estate.

Disputes

Unequal Distribution

When different values are bequeathed, jealousy often arises between beneficiaries. Those who feel they have been slighted may begin legal proceedings to have the Will invalidated by proving incapacity or undue influence. If you plan to compensate beneficiaries differently and think there is a chance that your beneficiaries are prone to jealousy, consult a lawyer regarding your options including Statutory Declarations.

Naming Children as Trustees

It is important to remember that Estate Trustees are entitled to claim compensation up to five percent (5%) of the estate.  This compensation can be waived but do not assume it will be. If you are making one or some of your children Estate Trustees, your other children may distrust how your estate is being handled. It is important to be honest with your solicitor regarding different family dynamics and how you intend to distribute your assets.

Dependant Support Claims

If you are supporting a dependant at the time of your death, they can seek dependant support. Dependant Support is governed by ss.58-62 of the Succession Law Reform Act. The court takes moral obligations very seriously and as such if a dependant relationship is found the court is likely to require dependant support be paid which can impact the estate’s value. If you have any dependants or are unsure, it is important to speak to a lawyer as the courts have tended to sympathize with dependants.

Transferring Property While Still Alive

Another option in estate planning is to name beneficiaries as joint owners of your real or personal property. You must be cautious when giving beneficiaries title to your property before you die. There is potential for a loss of control, loss of ownership, creditor risks and your beneficiaries using your money and property improperly including stealing funds or liquidating assets without your consent. It is important to obtain legal advice regarding any potential transfer of property while you are still alive.

For more information regarding wills and estates-related topics, please contact Vanessa Romanino at Woitzik Polsinelli at 289-220-3246 or vanessa@durhamlawyer.ca.

This blog was co-authored by Summer Student, Jason Corry.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”