Frequently asked questions on Wills and Estates

Why should I have a Will?

A will permits you to do many things which would not be possible if you were to die without one. While the list is not exhaustive, it includes the following:

  • specifying the person(s) who will administer your estate;

  • giving direction to your executors as to what is to happen to specific assets;

  • forgiving indebtedness from family members;

  • achieving desired income tax and estate planning objectives;

  • protecting beneficiaries under the Family Law Act;

  • indicating who should be the custodians of your minor children.

What happens if I die without a Will?

Dying without a will (intestate) will have the following consequences:

  • the cost of administering your estate will be higher;

  • the person who is given authority to administer your estate assets will not necessarily be someone you would have chosen;

  •  the scheme of distribution of your estate is fixed by statute, irrespective of your intentions or the beneficiaries' needs;

  • all amounts are paid out to the heirs as soon as they turn 18 years of age;

  • trustees are limited in the scope of the investments they can choose to make on behalf of the estate;

  • the share for a minor child will be administered by the Children's Lawyer, a government appointee.

My husband and I own all of our property jointly. Why should we have Wills?

There are at least two reasons why jointly owned property does not necessarily avoid the need for a Will:

  1. When one person dies owning property jointly with another, the survivor does not necessarily get the whole of the property by right of survivorship. That right applies only if the property is owned by the parties as "joint tenants". In order to determine whether that right of survivorship applies, the nature of the property must be considered and any title documentation must be closely scrutinized.
  2. Even if the property were held by a husband and wife as joint tenants, the right of survivorship would not address the case of the joint tenants dying simultaneously. In that case, one-half the property in question would be owned by the estate of each spouse, to be distributed either according to that spouse's Will or, if there is no Will, according to the applicable intestate succession rules. This may not produce the result you would want.

If my Will is going to contain instructions that everything I own is to be dealt with in the same way, why does my lawyer have to know what I own, where it is located and how much it is worth?

Your lawyer needs this type of information for several reasons:

  • knowing the types of property you own will allow your lawyer to decide the questions to ask which will enable him or her to assess your legal ability to deal with each such property under your Will (for example, a shareholder's agreement may restrict your right to transfer private company shares on your death);

  •  having information as to the type and value of your properties will assist your lawyer in assessing the exposure of your estate to income taxes on your death and whether steps can or should be taken to address that tax liability;
  • having an idea as to the value of your net estate will facilitate discussions between you and your lawyer as to the timing and quantum of income and capital payments made to a beneficiary over an extended period of time;

  • where some of your property is located outside of Ontario, the laws of succession of that "foreign" jurisdiction may have application, restricting your right to deal with it in your Will; moreover, there may be income (or other) tax laws of the foreign jurisdiction which must be considered.

Do I need to worry about taxes on my death?

Any income taxes you owe as a consequence of earning income during your lifetime represent a continuing liability of your estate. Whether your estate will have significant additional income taxes arising as a result of your death depends on the assets you own at the time of your death and the persons to whom they are given under your Will. Currently there are no succession duties in Ontario. If you have assets located in a foreign jurisdiction, there may be death or succession duties or estate taxes imposed by that jurisdiction. Sometimes, life insurance represents an effective means of satisfying such liabilities and protecting your estate for your beneficiaries. A lawyer who is experienced in tax and estate planning can give you good advice in minimizing exposure to income tax on your death, whether through your Will or by taking appropriate steps during your lifetime.

I have a Power of Attorney naming my spouse. Can it be used after my death to deal with my property instead of having a Will?

The general rule is that the authority bestowed on the attorney named in a Power of Attorney terminates on the death of the grantor. If there is a Will, the executors of the Will would have the requisite authority to deal with the deceased person's property from the time of death. Where neither the named attorney nor a third party has any knowledge of the grantor's death, the authority contained in the Power of Attorney will continue for the purpose of the transaction between the named attorney and the third party.

I already have a Will. How often should it be reviewed?

It is important to review your Will whenever there have been changes in family circumstances (for example, births, deaths, disabilities, marriages, separation or divorce) or if there has been a significant change in your net worth, whether an increase or a decrease. But even if no such changes have occurred since you last made or changed your Will, it is still a good idea to review your Will with your lawyer on a periodic basis (say, every three years). If there have been changes in income tax or other laws in the interim, your lawyer will be able to determine whether any of those changes in the law necessitate amending your Will.

Can I make my own Will without going to see a lawyer?

In Ontario, you can make what is known as a "holograph" Will. This is a document written entirely in your own handwriting. (It is not a stationer's form

with the blanks to be completed, nor is it a document prepared on your typewriter or word processor and signed by you.) No witnesses are required for execution of a holograph Will. However, there are many traps for the unsuspecting person who makes his or her own Will. Those traps can result in estate assets passing to persons not intended to receive them, either because key Will provisions are invalid (possibly giving rise to intestate distributions) or because the person's choice of words runs afoul of a legal rule or principle of which he or she is unaware. The best advice which can be given is to rely on a lawyer to take your instructions and translate them into legally effective provisions in your Will.

I had my Will prepared by a lawyer. I have the original executed copy and I would like to make a few changes. Can I make those changes myself?

Your ability to change your Will, even if the changes are made on the original executed copy, is limited by statute. While you can make deletions by completely obliterating the portion in question, changes or additions require the same formalities as were necessary for executing the Will in the first place. You should consult your lawyer to ensure that the changes you want to make will be legally effective.

I was married recently and I want to know how that affects my Will.

In general, marriage revokes an existing Will. If you do not make a new Will after your marriage, you will die intestate, unless your spouse survives you and elects against the revocation. A Will made in contemplation of marriage to a specific person and which so states is not revoked by marriage to that person.

I was divorced last year and I am concerned that my ex-spouse not receive anything under my Will. What should I do?

Divorce automatically revokes bequests to one's ex-spouse and removes that person as an executor if he or she was so appointed, unless the Will provides otherwise. However, if the scheme of distribution in your Will contemplates bequests to your ex-spouse, chances are that other changes will be appropriate as a consequence and you should not rely on the revocation rule. Furthermore, unless you make a new Will, your executor will be obliged to notify your ex-spouse that an application for letters probate has been submitted to the court and that your ex-spouse may, if desired, participate in the proceedings if he or she wishes to argue that your Will indicates an intention that he or she should receive bequests under the Will notwithstanding the divorce. This can be avoided by making a new Will after your divorce.

My wife and I separated three months ago. Do I need to change my Will?

Separation does not affect your Will. Even if you have a separation agreement which provides that your spouse will have no claim against your estate, that will

not revoke any bequest you leave to your spouse under your Will. Making a Will (or, if you have a Will, making a new one) is a matter which should be attended to immediately upon separation. Your spouse may still have a claim against you under the relevant marital property laws.

I have already made a list of the people who are to receive certain of my personal property (jewellery, works of art, etc.). Can I simply refer to that list in my Will and change the list from time to time?

While your Will can refer to bequests contained in a letter or memorandum, in order to be legally binding the letter or memorandum must have been made before the Will was signed. A list made or changed after the date the Will was made is not legally binding on the executors. Nonetheless, to the extent that the executors have discretion as to how they can deal with your personal property, the list may be a useful guide to them, even if it is not binding.

I recently bought a new car and acquired a valuable investment portfolio under my mother's Will? Do I need to change my own Will to reflect those new assets?

Whether your Will must be changed to reflect newly acquired property depends on how your Will is worded and whether you have specific intentions regarding how the new property is to be dealt with. In general, if your Will calls for the "residue" of your estate to be dealt with in a particular manner, that will include all property you own at the time of your death, whether it was acquired before or after you made your Will.

I have a Florida condominium. Will the instructions contained in my Ontario Will be recognized under Florida law, or do I need a separate Florida Will?

If the Will is properly drawn, it should cover the Florida condominium. However, there can be advantages to appointing a local executor to deal specifically with that property, especially if it is to be sold, rather than conveyed to a named individual.

I have specific wishes concerning my funeral and burial arrangements. Should I set those out in my Will?

Your executor is legally responsible for disposition of your body after your death, but is not bound by any instructions contained in your Will. Furthermore, in many instances the funeral and burial will take place before the Will is located. Practically speaking, it is normally close friends or relatives who attend to these matters and you should speak to whomever is the one most likely to do so to ensure that your wishes will be carried out.

If there are problems with my estate that prevent distribution for a lengthy period, how will my family be able to look after the cost of funeral and burial arrangements?

There are a number of ways to provide for the payment of funeral and burial costs (apart from pre-paying them). You can set up a joint bank account with the person who will be looking after the funeral and burial arrangements. That account can be accessed without having to wait for probate. Alternatively, you can purchase a small insurance policy, designating as beneficiary the person who will look after your funeral and burial. Many financial institutions have a policy of paying the funeral and burial expenses directly out of your account if given the invoices. In any event, most funeral homes and cemeteries are well aware of the problems that can be encountered in estate administration and are usually quite patient in waiting for payment of their accounts.

I have three young children and I am concerned that they not get their share of my estate at age eighteen. What can I do?

You can provide for a delayed distribution to your children, with specified percentages of a child's share being paid to him or her at one or more stated ages. There are no "correct" percentages or ages and these decisions will be a matter of individual choice. Your assessment as to the appropriateness of those percentages and ages may well change over time as your children mature and you can make changes to the scheme of distribution accordingly.

My wife and I would like to ensure that our children will be well cared for and we have decided that my sister would be the best person to do that after we are gone. How can we ensure that this happens?

You can appoint by Will a custodian for a child who is under eighteen at the time of your death. That appointment lasts for 90 days following your death. After that, the person must apply to court to be legally appointed. On any court application for custody, the court will decide what is in the child's best interests. While the choice you have made in your Will has some persuasive value, it will not bind the court. Depending on the child's age, the court may also want to hear the child's views on the matter. If you are concerned that a certain individual not be appointed as custodian, you can so indicate in your Will. Although it will not preclude that individual's appointment, it will put the court on notice to scrutinize closely an application for custody by that individual.

I am concerned that my trustees not take undue risks in their choice of investment of my estate assets. What should I do?

Unless your Will provides otherwise, the law in Ontario requires the trustees to follow a "prudent investor" rule -- a modern portfolio approach to investment which appropriately balances risk and reward. Trustees can be limited by the Will in the scope of permitted investments. For example, they may be limited to so-

called "conservative" investments (such as bank deposits, first mortgages, government-backed securities, "blue chip" stocks and bank deposits). However, the best advice is to choose your executors wisely and give them broad discretion to determine the investment portfolio make-up from time to time. For your comfort and their guidance, you can give them a separate memorandum which, while not binding on them, sets out your own views on the kinds of investments that they should consider or avoid. In this way, your trustees will have the benefit of your judgment and yet be free to make investments that you would have been comfortable with had you been available to make the decision.

Can I specify in my Will that I don't want my executor to receive any compensation for administering my estate?

By law, executors are entitled to receive fair compensation for their time and trouble in administering your estate. They are also entitled to be reimbursed out of the estate for reasonable out-of-pocket expenses they incur. The determination of what is fair will be made by a court, unless all of the beneficiaries are legally able to consent (over eighteen and not under a mental disability) and agree to the compensation claim. The courts generally follow an informal tariff which, in rough terms, represents 5% of the estate.

The Will may restrict the executor's entitlement to compensation and you could, if you wished, specify that the executor receive no compensation for services rendered. While your executor may well choose not to claim any compensation (because it would take something away from your intended beneficiaries), putting restrictions on the right to claim compensation is a poor idea. Firstly, the person named as executor may not accept the appointment, knowing that he or she will not be entitled to receive adequate compensation for the work done. Second, even if the executor is prepared to take on the appointment for no compensation, neither you nor the executor may be prepared for unexpected problems which could involve long and complex litigation that occupies much of the executor's time.

I have been named executor of my father's estate. What are my responsibilities?

You are responsible as executor for identifying the assets of the estate and taking whatever steps are necessary to obtain control over them. You are also responsible for taking steps to protect and preserve those assets. You must ensure that all legitimate claims of creditors are paid. You must see to the timely filing of tax returns and the payment of income taxes owing by the deceased (or at least ensure that adequate provision is made out of estate assets for taxes). You are then responsible for seeing that the disposition of the estate is carried out according to the terms of the Will.

How do I decide who should be my executor?

The best choice of executor is someone who knows you and your family and has good business sense. Sometimes, no one person fits that description and the appointment of two or more persons as co-executors may be necessary. Obviously, the person(s) you choose must be trustworthy. If your estate must be administered over an extended period of time for the benefit of young children, it may be wise to choose someone who is likely to survive to the end of that period. Choosing an executor who lives at a distance from the estate assets or from the beneficiaries can be problematic. In some cases, appointing a professional trustee (that is, a trust company) is the best answer, whether as the sole executor or jointly with others. That is particularly true where the estate is so large and complex as to represent too heavy a burden to impose on an individual.

What happens if the executor I have named refuses to take the position or dies before completing his or her duties?

No-one can be forced to accept an executorship. For that reason, it is a good idea to discuss the executorship with the intended person so that you will know whether he or she is prepared to accept the appointment. Even if the person accepts the appointment as executor, he or she may die, become mentally incompetent or resign the position before the estate administration is complete. If the last named executor dies "in harness," having already probated the Will, the executor of his or her estate will assume executorship of your estate, in the absence of a contrary provision in your Will. For all of these reasons, it is wise to have an alternate executor named in your Will.

Where should the original executed copy of my Will be stored?

As a service to you, your lawyer can retain your original Will in his or her own storage facilities (thus ensuring safety and confidentiality) and give you a copy of the Will that you can refer to from time to time. If you prefer to keep the original executed copy of your Will, it should be stored in a safe place along with your other important papers. A third possibility is to store your Will with the court office in the jurisdiction where you live for a nominal fee. No matter where you choose to store your Will, you should advise your executors of its location, so that they can have quick access to it in the event of your death.

How much does a Will cost?

The cost is dependent on how much time your lawyer spends. The process in completing your Will involves several steps:

  • Meeting with you to discuss your particular circumstances and estate planning requirements and taking your Will instructions.

  • Preparation of a draft Will for your review.

  • Making any changes required.

  • A final meeting with you to review the entire Will and attend at its execution in final form.

Your lawyer should provide you with a questionnaire in advance of your first meeting to facilitate discussions in an efficient manner. You can shorten the time your lawyer will require for the various steps in the process by carefully and thoroughly collecting and organizing the information requested and crystallizing your estate planning objectives before your meeting. Complex tax and estate planning requirements will require additional discussion and drafting time, as will frequent changes to your original instructions. It is a case of being penny-wise and pound-foolish to allow the cost of a Will to dictate (a) whether or not to make a Will or to change an existing one; or (b) the choice of lawyer or firm to prepare it. Cutting costs and corners in the preparation of your Will can be guaranteed to increase many-fold the cost and aggravation of administering your estate after your death.