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Frequently Asked Questions

Are Will Kits any good?

There is absolutely nothing wrong with those will kits that can be purchased through stationery stores and other outlets. That is, there is nothing wrong with them until you start to fill them in and try to use them. At that time, the rules of interpretation begin to apply to the content you have added and the question then changes. It is no longer a question of whether or not the kits are good. It is then a question of whether or not the information you have entered is added in a way that properly gives effect to your wishes and that you have prepared a valid will.

Unfortunately, when it comes time to interpret your will, you will not be available to assist in that interpretation. In the event that your wishes are communicated in a way that is not clear to everyone (and sometimes it may seem that things are clear to you, but others may have a different opinion), it may become necessary to involve the courts in deciding what was intended. However, judges are not always keen on relying on will kits when it comes time to interpret your will and it may require multiple court appearances and multiple witnesses to ensure that your wishes are communicated properly to the judge.  Needless to say, that becomes an expensive, uncertain and lengthy process.

Even worse, it may be the case that the information you have added says something completely different than what you intended. In that case, your intentions are not important and the distribution of your estate will follow the path as set out in your additions to the will kit. This can lead to results completely contrary to what you would have wished, and what would have taken place had the will been drafted properly.

Using a will kit to draft your will can sometimes be thought of as kind of like you changing the oil in your car by yourself. If you undertake the time and effort involved, you can save a few dollars when compared to the cost of having a professional complete the task for you. If you have done it properly, all will be well and your car will continue to operate properly. However, if you have done something incorrectly, it may be that you end up with a blown engine and thousands of dollars in repair costs.

Before you use a will kit, you must seriously consider your own level of skill and training and compare that to the skill and training that we have obtained through many years of education and then many further years of experience. Ultimately, the decision is yours as to whether the savings are worth the risks, but it is our suggestion that the wisest course of action is usually to rely on the professional assistance of our office.  After all, I always think that a well-informed testator is the happiest testator.

 

Probate: A Top Seven FAQ

1. What is probate?  “Probate” is the process by which a court (in Ontario, the Superior Court) establishes the legal validity of a Will, confirming that it is in fact the last Will of the deceased person. This leads to the court issuing a “Certificate of Estate Trustee With a Will.” The Estate Trustee’s duties include distributing the estate according to the terms of the will.

2. What if there is no Will? You apply to the Superior Court for a “Certificate of Estate Trustee Without a Will”.  The Estate Trustee’s duties include distributing the estate according to Ontario intestacy law (“intestacy” just means dying without a will).

3. Is probate always necessary?  No. If there is a Will, it mainly depends upon the type and value of assets in the estate. Where there is no Will, probate is necessary in most situations, except very small estates. This is a big reason to have a Will – you might avoid the cost of probate, which is often much more than the cost of a Will.  (You also avoid, or at least decrease the possibility of, people fighting over your assets if there is a Will setting out your wishes.)

4. What sorts of assets require probate? Real estate not held in joint tenancy and/or with a mortgage or line of credit on it almost always requires probate. Transfers of publicly traded shares usually require probate. Banks will require probate on large amounts of funds on deposit or investment – amounts vary by bank.

5. How does joint tenancy help avoid probate?  Joint tenancy is a special form of ownership by two or more persons of the same property.  The owners share equal ownership of the property and if one of the owners dies, that owner’s interest is automatically transferred to the survivors.

6. What does probate cost?  Probate fees, or estate administration tax, are based on the value of the assets being probated. The rate is $5 per $1,000 on the first $50,000, and then $250 plus $15 per $1,000 of estate value over $50,000. Even for a modest estate, probate fees can be as much as $2,500 (this does not include the lawyer’s fees).

7. About those lawyer’s fees… Legal fees for completing and filing the application, and assuming no one will try to contest the appointment of the Estate Trustee, start at approximately $2,000, plus the probate fees which, as stated above, depend on the value of the assets of the estate.  Any further fees from that point forward will depend upon how much the Estate Trustee does as opposed to the lawyer; how simple it is to transfer assets from the Estate to the beneficiary; whether there are disagreements among beneficiaries; or other messes that might need to be cleaned up.

As you can see from these few points, a bit of planning can protect the value of your assets so that they can be enjoyed by the people you want to inherit them, rather than having money spent on probate costs.  If you do not have a Will or are worried about what might happen to your assets, you may wish to consult a Wills & Estates lawyer to assist you in determining how best to avoid probate.  After all, I always think that a well-informed estates client is the happiest estates client.

 

Intestacy: A Top Five FAQ

1. What does “intestacy” mean?  “Intestacy” is a legal term used to describe the situation where a person passes away without a valid Will.

2. What happens in an intestacy situation?  If you pass away without a valid Will in place, the Succession Law Reform Act determines how your assets will be divided.

3. Who will get my assets under the Succession Law Reform Act? 

4. What if I have a common law spouse? Unfortunately common law spouses do not have the same rights as a legally married spouse under the Succession Law Reform Act.  A common law spouse may have a claim as a dependent.  A common law spouse may also be able to assert property rights in jointly held assets.  However, if you are legally married but separated from your spouse, your spouse will still be entitled to your assets under the Succession Law Reform Act.

5. What if I own property in joint tenancy with my spouse? If you own property as a joint tenant with your spouse, legal or common law (meaning you and your spouse are equal owners in the property), the property will pass to your spouse and the intestacy rules will not apply to that property.

As you can see, taking the time to speak with a Wills & Estates Lawyer to prepare a valid Will will ensure that your assets are enjoyed by the people you want to inherit them and that your loved ones are taken care of after you pass away. And I always think that a well-informed Will client is the happiest Will client.

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