Wills And Estates Law

Selecting the right executor for your will is of utmost importance. You have a range of choices, including adult family members and trustworthy friends. If your will involves complexities, considering someone with expertise in estates, such as a Wills & Estate lawyer, is advisable. It's also possible to opt for joint executors, combining your chosen individual with a legal professional.​

In the event that multiple wills come to light, the court typically gives precedence to the most recent version for asset distribution. If this scenario becomes intricate and protracted, a legal expert can step in to mediate and resolve matters through probate litigation. To avoid complications, it's essential to ensure that you don't have multiple wills.​

Divorce has significant implications for your will. While a divorce doesn't automatically nullify your entire will, it does revoke portions involving your former spouse's roles as executor, trustee, or guardian. Any provisions benefiting your former spouse will be reallocated to other beneficiaries. To prevent unintended outcomes, it's crucial to revoke your existing will promptly after divorce and create a new one that reflects your current wishes. This ensures that your estate aligns with your present circumstances.​

When a person dies without a valid will, called “intestate”, Ontario’s Succession Law Reform Act sets out how the estate is distributed. According to the Act, unless someone who is financially dependent on the deceased person makes a claim, the first $200,000.00 is given to the deceased person’s spouse if he or she has decided to claim his/her entitlement. The alternative is to claim half of the net family property. Anything over $200,000.00 is shared between the spouse and the descendants (e.g. children, grandchildren) according to specific rules. If there is no spouse, the deceased person’s children will inherit the estate. If any of them died, that child’s descendants (e.g. grandchildren of the children) will inherit their share. If there is no spouse or children or grandchildren, the deceased person’s parents will inherit the estate equally. If there are no surviving parents, the deceased person’s brothers and sisters inherit the estate.

A power of attorney is a legal document that gives someone the right to act on behalf of an individual in certain circumstances. There are different kinds of powers of attorney in Ontario. There is a Continuing Power of Attorney for Property which covers financial affairs and allows the individual named as the attorney to act for the individual. There is also a Power of Attorney for Personal Care which covers personal decisions such as those decisions related to housing and health care. The term “attorney” refers to the person or persons an individual has chosen to act on their behalf. He or she does not have to be a lawyer nor a close relative, it could be a close and personal friend instead.

If someone is “mentally incapable” it means that they cannot understand relevant information or cannot appreciate what may happen as a result of decisions they make, or do not make, about their finances, health or personal care. “Mentally incapable” means different things in different situations and can indicate a higher or lower standard of capacity depending on the context.

This expression of the “living will” is used to refer to a document in which an individual will write down what they want to happen if they become ill or are unable to communicate their wishes about treatment. It is quite common, for example, for people to write a “living will” saying that they do not wish to be kept alive on artificial life support if they have no hope of recovery. The term “advance directive” is also sometimes used to refer to such a document. Some also use the phrase “proxy directive” to describe a document that combines a power of attorney and a “living will”.

The estate administration tax is calculated on the total value of the deceased’s estate wherever situated, that is sworn/affirmed to on the application for a certificate of appointment of estate trustee under “Value of Assets of Estate”. The formula for calculating the amount of the tax is set out in the Estate Administration Tax Act, 1998 as follows: • $5 for each $1,000, or part thereof, of the first $50,000 of the value of the estate, and • $15 for each $1,000, or part thereof, of the value of the estate exceeding $50,000

In law, an election is a legal decision or choice. When a married spouse dies and has left a will, the surviving spouse can make an election to receive: • An equalization payment under the Family Law Act, or • His or entitlement under the will. When a married spouse dies and there is no will, the surviving spouse can make an election to receive: • An equalization payment, or • His or her entitlement as a spouse under the Succession Law Reform Act A surviving spouse has six months from the date of the spouse’s death to make an election. If an election is not made within six months, the spouse will be granted his or her entitlement under the will, or under the Succession Law Reform Act if there is no will. The election has an important impact on the rights of the surviving spouse. Surviving spouses should seek legal advice before making an election. A surviving spouse who decides to make an election must file it in person or by mail with the Estate Registrar for Ontario within six months of their spouse’s death.

A certificate of appointment of estate trustee with a will is a document issued by the court that proves the authority of the estate trustee (formerly called an executor) to administer the provisions of the deceased’s will. A certificate of appointment of estate trustee without a will is a document granted by the court that gives authority to the estate trustee (formerly called an administrator) to manage and distribute the estate of the deceased who died without having made a will.

Unless you restrict your attorney’s powers, he or she will be able to do almost anything that you can do concerning your finances. Your attorney can sign documents, start or defend a lawsuit, sell property, make investments and purchase items for you. Your attorney cannot, however, make a Will or give a new Continuing Power of Attorney for Property on your behalf. Think carefully before restricting your attorney’s powers. If you become incapacitated, and there are some assets that your attorney can’t look after, you may need to have a guardian appointed. If no one comes forward to apply to be your guardian, the Ontario Public Guardian and Trustee may be required to act for you.