Navigating the Complexities of Estate Planning; Your Last Will and Testament and Powers of Attorney Posted on May 13, 2024IntroductionAt some point in all our lives we will need to plan for the eventual time of our passing and leaving our loved ones. In most cases, we don’t know when we are going to pass away, so we need to prepare for that eventual and final stage in our lives.Angus Reid SurveyA recent Angus Reid Institute survey of 1,160 Canadians revealed that 50% of adults do not have a Will, and of those adults who are 55 years and older, only one in every five have a Will.Most of those who are younger in age (under 35 years), 80% of them to be precise, do not have a Will. In addition, 50% of adults in Canada who are between the ages 45 and 54 also claim to not have a Will.So, what is the best time to think seriously about estate planning (Wills, Powers of Attorney, end of life wishes, etc.)? The answer, ‘it depends’. The ‘best time’ depends on where you are in your life, your circumstances, and your responsibilities.If you are younger and still living at home with your parents and still getting your life started, then perhaps estate planning may be premature.However, if you are young, independent, living on your own, and have specific wishes to be followed through if you pass away prematurely, then estate planning may be prudent, especially if you have accumulated assets. If you are older, have more responsibilities, own assets, have your own family, and have loved ones who depend on you, then now may be the best time to get your estate planning in order.The Problems With Not Having a WillNot leaving a Will and instructions about your estate adds more frustration to an already stressful situation. For those who may be financially dependent on you, they may have to wait for the courts to disperse funds from your estate and relieve their financial burdens. This also means that you will no longer have any control of how your property will be dispersed and to whom (usually spouses and family).Planning for this final stage in our lives can often be overwhelming and the appeal of procrastinating and “kicking the can down the road” may enter your mind. If you’re not sure if you need a Will, it may be prudent and advisable to talk to a lawyer and be sure.Deciding whether you need a Will shouldn’t be based on how much money you have, or how much property you have or don’t have, there may be other factors that would require someone to need a Will.When a person passes away without a Will, or has a Will which hasn’t been updated, or a Will which is incomplete or has errors, then the executor of the estate will be challenged and obstructed in fulfilling the instructions outlined within the Will, and the wishes of the deceased.The Executor Side of Estate PlanningOur initial estate planning blog post ‘ A Hands-On Guide for the First (or Second) Time Executor ‘ focused on the executor side of estate planning. The blog post focused on the role and viewpoint of an executor. The post includes a checklist of executor tasks, details related to probate and other executor responsibilities.One of the challenges of an executor is fulfilling the needs and wishes of the friend or relative who has passed away. The more accurate, detailed, and organized the Will, the easier the job will be for the executor, and much less frustrating for the intended beneficiaries of the estate. In this blog post we will focus on what the term ‘estate planning” is and what is intended with that term.Adulthood MilestonesWhen we enter adulthood and begin having more responsibilities, increasing our assets and property, and even starting a family, most of us receive advice that we should ‘get a Will’ prepared, talk to a lawyer, and explore other estate planning concepts.Whether we are young or getting on in our years, there are numerous reasons why creating a Will and following estate planning best practices are important. Our lives progress at different stages, you may be starting a family, maturing as a family or you are at a time when your children are starting their own families, or you are approaching retirement.This blog post will try to cover the many elements related to creating a Will, Powers of Attorney, and estate planning concepts at these different stages.Blog Post ObjectiveThe objective of this blog post is to provide selected high-level topics that may be of assistance to those who are ready to get their Will created, updating their Will, or have other estate planning needs and requirements.The blog post will focus on describing the importance of:Estate planning.Last Will and Testament.Powers of Attorney (PoA).Other related estate planning factors, including Trusts.The post is not written for the ‘do it yourself’ approach. Although, for those readers who are considering a Will, Powers of Attorney and Estate Planning without the assistance of a lawyer, they may find value within the blog post, and the potential perils of the ‘do it yourself’ method related to estate planning. Where Are You Now?As we mentioned in our Introduction, your current situation will influence your estate planning next steps. If you have assets, property and loved ones who depend on you, now is probably the best time to have a Will prepared and to think about the benefits of other estate planning factors. Estate planning isn’t just about where you are now, it also includes planning for the future.Critical Steps and Careful Planning Estate planning is an important and critical step in your life and will require some uncomfortable and careful planning. Planning for the time when you are longer here is one of the most selfless gifts you can give to your loved ones.At the time of your passing, your family will have to immediately start thinking about what the next steps are with the funeral, and the next steps with your estate, they will be doing this at a very difficult and emotional time.If you don’t have your Last Will and Testament and Estate Planning in order, in addition to the funeral, your family will have an even more distressing experience.With your Last Will and Testament and estate planning in order, your family will know who your executor is, the executor will know where your Will is and what the next steps will be for the funeral, and for the managing of your estate and distribution of your assets.If you need a Will and estate planning advice, and haven’t taken that first step, you may be delaying these decisions because you just don’t know where to begin. Although this blog post may be of some value to you, the next step would be to ask for help. A lawyer can provide you with the advice and assistance to get your Will and estate planning in order. What Is Estate Planning?Most people need estate planning and an estate plan. Essentially, estate planning is the preparation and detailed planning required to communicate your wishes and intentions for the distribution of your assets, and the management of your liabilities when you pass away. This planning will help ensure that your loved ones are provided for, your estate is closed appropriately and legally, and in compliance with government requirements.Without an estate plan, you will be leaving important decisions about your funeral, estate, and assets to someone you haven’t chosen and may not trust, to carry out the government standardized rules for distribution.Wills, Powers of Attorney (PoA) and TrustsEstate planning isn’t all about the Last Will and Testament. Estate planning also includes:Creating Powers of Attorney and Trust, if required/recommended:Powers of Attorney are a vital component of estate planning, as it focuses on who you will trust with financial, property, legal, and health care decisions if you are medically or mentally unable to, or in some cases unavailable to make decisions if you are not geographically availableTrust(s). A Trust is important if you have assets which require management and special instructions, disbursements, or distribution to a beneficiary(s). A designated trustee would be named to perform this management and carry out these instructions after you pass away. A Trust can be beneficial in certain circumstances. It is best to speak with your professional advisors to determine if a Trust can be of benefit to you.When the unique needs of your estate planning and motivations are understood, the next steps are to understand estate planning in greater detail, along with its advantages and benefitsThe Importance of Your Will and Keeping It UpdatedIn most cases, the importance of having a Will and understanding estate planning will depend mostly on a few factors; your family and loved ones, your assets, your responsibilities, and at what stage you are in your life at the moment. Any one of these factors may be a compelling enough reason to have a Will and to practice sound estate planning.Intestate and Provincial ProceduresIt could even be said that having a Will at any stage in your life would be prudent, at a minimum to give your survivors instructions about your valuables and funeral instructions. Creating a Will is essential, and keeping it updated over time is also important.Dying without a Will in Canada is called ‘intestate’, which means that your assets, debts, and property will be dealt with pursuant to the Provincial mandated guidelines.In most cases, a court appointed representative will be required and will be responsible to distribute your estate and finalize your financial affairs. In addition, that court appointed representative will also make decisions related to your funeral arrangements.Funeral Preferences and Asset DistributionIf you are young and single you may have preferences about your funeral and a sense of who you may want to leave your belongings and sentimental items to, or your specific funeral preferences. If you don’t have a Will, these decisions will be made on your behalf, perhaps by your family, or someone else who is authorized to act on your behalf.As you get older and leave home and transition along your life and career journey, your financial situation will probably change, as will your responsibilities. If these transitions include additional assets, family responsibilities, including a spouse and children, then these milestones would warrant creating a Will or a change in your current Will and Estate Planning.Difficult Times for FamilyCreating a Will and keeping it updated will reduce the burden on your family and friends, including legal issues and complications. If you have dependents and a family, these issues and complications could add unnecessary frustration and stress at an already difficult time. In addition, if you don’t have a Will or have an outdated one, you could be impeding and delaying funds that your family needs for immediate expenses and their livelihoodGiving Your Property Away and Gifting While You Are Still AliveOne of the key benefits of proactively giving your property away while you are still alive is to manage the expectations of family and beneficiary property distribution while you are still alive. Distributing property proactively prior to your passing may alleviate future family and beneficiary conflict and misunderstandings after you have passed away.Another benefit of distributing your wealth, property, and assets prior to your passing away is the handing and management of any unforeseen distribution complexities, challenges, or issues. You will be able to work through these issues with the stakeholders involved, including lawyers, accountants, or other applicable stakeholders.Other proactive benefits include:Providing mentoring, guidance, or additional personalized instructions to the beneficiaries of the assets, if applicableThe experience and contentment of observing your beneficiaries benefitting from your giftsPossible reduction in probate fees and taxesProactive Tax PlanningIt is important to involve a tax specialist if you are considering a proactive approach to giving your assets away while you are still alive. In some cases, your gift may be triggering a tax liability for your designated asset recipients.This consideration should also be weighed against ensuring that you have sufficient assets to cover your anticipated expenses for the remainder of your life.Is Life Insurance Prudent and Required?From an estate planning and Will preparation perspective, having life insurance does offer one key advantage. Life insurance does not necessarily need to go through probate and ‘Will’ distribution process, provided that the life insurance policy(s) have a clear and designated ‘beneficiary’.If the policy refers to the ‘estate’; or similar terminology, then the life insurance proceeds will become an asset of your estate and distributed pursuant to your will, possibly triggering “Probate” in the process.A beneficiary of a life insurance policy, in most cases, will receive death benefits much faster than the probate process.Deciding whether you need life insurance is a difficult question to answer in this blog post, as everyone’s situation is different and dynamic. Deciding whether you need life insurance is best decided with a life insurance professional, and possibly along with your lawyer. Getting OrganizedBe ProactiveOnce you have decided to get your Last Will and Testament and Estate Planning in order, one of the first things you will want to do is to take a detailed and organized inventory of your property and assets. This may also be a good time to ask for help and talk to a lawyer, as mentioned earlier.One of the most important elements of having your Will prepared is the proactive organization of your financial information and the detailed preparation you will need to complete. The more prepared and organized you are with your property and assets the better the outcome of the Will and your estate planning. Your lawyer will need most of this information.Keep Your Executor in the LoopGetting organized includes the name and contact information of your executor, the names of your beneficiaries, and any instructions and details about trusts, if applicable. Gathering all detailed financial and asset information and the location of these assets.The following list is the first we will be providing which will help you get started, organized, and prepared to meet with your lawyer, we will also provide another preparation list further on in this document, which will help you assist your executor with your funeral, Will and other estate planning wishes and preferences. The more you can do to help the executor proactively while you still are alive, the less of a burden your executor and loved ones will have at that time.Estate planning organization details include:If applicable, a copy of the current/previous Will and any important notes related to the Will and its locationThe location and key(s) to a Safety Deposit Box(s)Inventory list of your assets, including cash, securities, real estate/property deeds, important or valuable papers, jewelleryDocuments and materials related to your preferred funeral arrangementsDocuments and materials related to your income tax, accountants name and contact details, including tax returns, employment contracts, pay stubs, Notice of Assessments, etc.Personal notes about distribution of personal items or belongingsFinancial details, investment documentationReal estate details, mortgage, condo, or real estate investment documentationDebt details, banking statement, credit card statementsLocation of important documents, for example your passport, driver’s license, health cards, marriage documents etc.Login/password instructions for your technology, including tablet computers, desktop computers, cell phones, laptops, etc. Executor instructions for distribution or disposal of your technology. Online subscriptions that will need cancellationYour Pension details and documentationTax documentation location. For example, previous years income tax returnsYour instructions for personal belongings, including household goods, furniture, artwork, any collections, automobiles etc.Current employer contact details. Details or instructions about any outstanding salary or bonuses, death benefits, or other amounts owingContact information for your essential resources, lawyer, accountant, funeral home, bank (new estate administration bank account) real estate agent, if necessary, etc.If you are a veteran. Contact details for Veteran Affair. Any potential death benefitsDetails related to any business ventures. Outline any business interests and outstanding contract obligations or assets. Provide details to determine whether the business should be closed or kept in businessContact newspapers or other avenues to advise potential creditors of the testator’s passingPrepare a contact and notification list for all relevant stakeholders, including your:financial contactsfinancial contactswealth advisorprevious lawyersaccountants/bookkeepers/tax contactContact details for the Government of Canada or pension provider(s)Details for any other subscriptions or memberships, including cable, mobile phone, land line, internet, club memberships etc.Provide list, termination or legacy instructions, and login information for your ‘digital assets, including social media, websites, and email addressesAdditional Will preparation information and details can be found in the ‘A Hands-On Guide for the First (or Second) Time Executor ‘blog post. The ‘#2 Checklist of Executor Tasks’ and the ‘#1 The Role of an Executor Initial Checklist ‘. The Components of a WillWe have provided the structural components of a Will below. However, there are best practices that apply to all these components.A comprehensive Last Will and Testament includes all your assets, belongings and end of life wishes, along with the details, access, instructions, and documentation which allows the executor to find the information they need and allow them to follow through on your instructions and your wishes in a straightforward way.Six Key Components of a WillIn most cases, there are at least six key components of a Will. A complex estate may have even more. These are the essentials:1. Testator details. Name of the testator, their address and marital status.2. Instructions relating to the distribution of assets. The property beneficiary designation instructions.3. Beneficiaries4. If necessary, and there are minor children, guardian instructions.5. Trusts, if children are beneficiaries6. Attachments and Alternative Provisions. Including, for example, financial and assets information (bank/financial account details, pension, RRSP/RIF/TFSA etc.). In addition, details related to utilities, debt repayments, pets, sentimental items etc., could be included in the attachments. Provisions for unforeseen and unexpected future circumstances, including beneficiaries’ marriage status, beneficiaries which pass away, provisions can outline a backup plan.In addition to the structure, another important part of the Last Will and Testament is accuracy and clarity. If the Will is not clear or has areas of vagueness which may be open to interpretation, then the Will could be contested. To avoid potential legal or family conflict, delays, more complex estates would benefit from legal advice and the preparation of the Will with a lawyer.How Do I Choose Beneficiaries?Choosing a beneficiary(s) for your estate is an important element in the preparation and follow-through of your Will when you pass away. If you don’t provide beneficiary instructions, then your estate will be distributed pursuant to the provincial standardized distribution rules.If you are married, choosing a beneficiary(s) is usually the naming of your closest and most dependent family member, those who would be most exposed and suffer financially in the event of your death. In most cases, your spouse is the most prudent and primary beneficiary.If you are not married and have no children, any close or extended family members, or friends who would benefit the most from your estate assets would be other possible candidates.What Is a Codicil? Making Adjustments or Changes to Your WillIf you recently completed your Will and need to make a change, it may be possible to make a change without creating a new Will. A ‘Codicil’ is a legal document that permits you to make an amendment to your Will without replacing the current Will. This Codicil can accompany your Will at the reading of your Last Will and Testament after your passing.Similar to your Will, the Codicil must comply legally, the same compliance as your Will’s preparation. The Codicil will also need signatures and witnesses.Codicil Best PracticesCodicils are best used for minor changes, like address changes, removing or adding Executors, or adding small gifts.It’s important to remember that Wills may become a part of the public record if your estate is required to be Probated.If you create a Codicil that changes a beneficiary’s gift in the Will, the beneficiaries may see the change and there could be a misalignment of expectations, conflict and bad feelings about the Codicil change after the Will has been created.It is best practice to create a new Will, where you are changing the named beneficiaries.Estate Planning with Taxes in MindThe good news for beneficiaries is that there are no ‘inheritance taxes’ in Ontario. There are however taxes payable by the estate.These taxes must be paid first and prior to any estate distribution to beneficiaries.These taxes include:An Estate Administration Tax, also known as Probate Fees or Probate TaxIncome Taxes of the deceasedIncome Taxes for any estate TrustsIn some cases, a Certificate of Appointment may be required by the executor to collect and manage the deceased estate. A lawyer can advise whether a Certificate of Appointment is required. The Importance of Powers of Attorney (PoA)Just as the Will is a legally binding document, the same goes for a Power of Attorney. Your Last Will and Testament focuses on your property and wishes after you die. The Power of Attorney permits you to appoint a substitute decision maker for when you are alive, but incapacitated. A Power of Attorney is an integral part of your Estate Plan.The Power of Attorney applies only when you are alive, and the Power of Attorney ceases to be effective at the time of your death. The Power of Attorney is a legal document which gives the right to someone else to make decisions on your behalf. There are usually two types of ‘Power of Attorney’: one for Personal Care and the other for Property.The Components of Powers of AttorneyThe person you choose for a Power of Attorney should be someone you can trust unquestionably. A capable family member, spouse or a long-time friend would be possible examples.Legally they must be at least 18 years of age (for the Power of Attorney for Property), (16 years for Personal Care), and mentally capable.Personal CareThe first reference of a ‘Power of Attorney’ is for personal care, which is also known as ‘Power of Attorney for Personal Care’ (POAPC).The reason that this document is important is in the event something that something unfortunate happens to you, like an accident or a severe illness, which impacts your ability to make important decisions for yourself, a person with the Power of Attorney can make those decisions for you. These decisions may include provisions for healthcare, living and housing arrangements, and other life considerations like meals and clothing.While your family can make some of these decisions for you, they can’t make all of them. Only a person with the ‘Power of Attorney’ can make all personal care decisions for you. PropertyThe second reference of a ‘Power of Attorney’ is Property. As the term suggests, the Power of Attorney for Property applies to the financial affairs decisions about your property while you are healthy and terminates if you become incapacitated. A ‘Continuing Power of Attorney for Property’ (CPOA) covers your financial affairs and continues even if you become mentally incapacitated.There may even be occasion whereby you have a Power of Attorney for Property if you are away from home or for other reasons when it’s more prudent to have someone act on your behalf if you are not available or able act for yourself.This type of Powers of Attorney is sometimes referred to as a ‘Continuing Power of Attorney’. Essentially this PoA doesn’t cover decisions if you become mentally incapacitated, but becomes effective and usable, once it is signed.These financial affairs may include:Managing InvestmentsMaintaining or managing property, including the buying or sale of propertyCollecting or paying debts or expensesWithout a Power of Attorney for Property, your family and friends are not authorized to make the decisions for you. These ‘powers’ can be selective; you can put conditions and terms to limit these powers.For more complex Property Powers of Attorney, appointing or talking to a lawyer may be prudent. Trusts. What Is a Trust? Do I Need One?A Trust is legal arrangement between certain named individuals. Namely, the “Settlor” (the person who creates the Trust), the “Trustee”, (the person who manages the trust property), and the “Beneficiary”, (the person who benefits form the Trust property). A trust must have all three individuals and trust property, in order to be valid.Two Primary Types of TrustsWhile there are many types of trusts, there are two main categories of trusts: A ‘Living Trust (‘inter vivos’, irrevocable or revocable trust)’ and a ‘Testamentary Trust (irrevocable only trust)’. A Living Trust is created while the settlor is alive and is deemed to exist at the time it is executed. A Testamentary Trust is created through an individuals Will and only comes into effect when that individual passes away.An Irrevocable Trust cannot be changed or cancelled once it has been set up, on the other hand a Revocable Trust can be changed, altered, or terminated by the Grantor/Trustor, provided the Trust agreement permits such changes.The Living Trust can include instructions to transfer specific assets and or property at a certain time(s) to a specific beneficiary(s). A Living Trust can also be set up, to assist you if you become mentally or physically unable to take care of yourself, by assigning your assets to long-term care outside or inside of your home.Trusts are an effective way for controlling the distribution of assets in a situation where you want someone to receive the benefit of property or an investment, but don’t want that individual making the decisions pertaining to the management of said assets. Trusts are required in situations where beneficiaries are under the age of eighteen (18). Trusts may also be useful in situations where you don’t want someone to receive an inheritance until a later age. Funeral and Organ Donation DecisionsFuneralFor the most part, the decisions made about your funeral arrangements will be made by the executor of the estate. The executor will follow the instructions provided and detailed in your Will and has the responsibility to dispose of the testator’s remains in an appropriate, timely and dignified manner. This responsibility is one of the first actions taken by the executor. It is a criminal offense to neglect this duty.Although the executor usually endeavors to follow through on the deceased preferences and wishes left in the Will, the executor has the final decision with this responsibility.In most cases, the executor will also coordinate and consult with family members about the testator’s funeral instructions and wishes, in most cases the executor will carry out reasonable costed funeral arrangements relative to the size of the estate. In Ontario, both burial and cremation are regarded as decent and dignified ways of disposing of remains.Your funeral arrangements, the type and cost of the funeral arrangements, along with your preferences (as a proportion of your estate) should be discussed well in advance with your executor prior to your passing away, along with the basis, instructions, and contents of your entire Last Will and TestamentDeath BenefitAs for costs, you may qualify for the Government of Canada Death Benefit, a $2,500 single payment. More information can be found at the Canadian Government website.Our blog post ‘A Hands-On Guide for the First (or Second) Time Executor’ provides details about the role of an executor and their responsibilities, a review of this article will help you in understanding the role of your executor and how you can help them with this responsibility.One of the best times to do this is during the preparation of your Last Will and Testament. Meeting and reviewing the Will with your executor soon after the Will’s completion would be the best time to update them with any changes to the Will. The more details, guidance, and insights you can provide your executor, in advance, the more effective and less challenging and frustrating the executor’s role will be.Organ DonationIn Canada, most people support organ donation. Unfortunately, only a small percentage make the actual plans to have their organs and tissue donated. A person can make plans to donate their organs and tissue while they are alive (you can register here at Ontario Government, Service Ontario at beadonor.ca), more information can also be found at Service Ontario’s Organ and Tissue Donor Registration website.It’s important to let your executor and family know of your organ and tissue preferences while you are alive, to prevent any future funeral misunderstandings or frustrations. Informing your lawyer of your organ donationdirectives at the time of your Will’s preparation may also be beneficial.Organ donation direction and preferences can be included in the Last Will and Testament and the Powers of Attorneys for Personal Care.Additional questions can be answered by the Ontario Health ‘Trillium Gift of Life Network’ who are responsible for organ and tissue donation services in Ontario. They can also be reached at 1-877-363-8456. Updating Your Last Will and Testament. When Do I Need to Update My Will?There are numerous reasons why you should keep your estate planning up to date and in order. One of the primary reasons is to ensure your loved ones are taken care of in the event of your death, both in the short term and the long term.To ensure this happens, your executor needs to have your current and accurate Last Will and Testament in order to fulfill your wishes and settle your estate promptly.Update FrequencyAs to when you should update your Will, it really depends on your circumstances, usually your Will should be changed or updated when your important life milestones change.These changes may include marriages or divorces, executor changes, address or location moves, beneficiary changes, asset or property adds or deletions, and adding or removing beneficiaries from your Will.To ensure you have a complete and accurate Last Will and Testament, reviewing your Will and estate planning every twelve months may be prudent as a regular and proactive measure.Discussing your funeral and end of life preferences with family is also a good idea.Being proactive with updates and changes isn’t just limited to your Will. Keeping your estate planning up to date is also important, specifically your Powers of Attorney, and if applicable your Trusts. What is Probate?‘A Hands-On Guide for the First (or Second) Time Executor’Our ‘A Hands-On Guide for the First (or Second) Time Executor’ blog post provides detailed information about Probate and what happens if you don’t have a Will, along with the many problems that occur if a Will doesn’t exist, if the Will can’t be found, or if the Will hasn’t been updated, or isn’t accurate.As we describe in the post, Probate is one of the terms we get the most questions about. In fact, probate isn’t so much a place or event, it’s something that needs to be performed in accordance with the Succession Law Reform Act. In the past, Probate or Probating a Will was called ‘Letters of Probate’.Every province is different, we will be focusing on the laws relating to Probate in Ontario, however the logic is mostly the same across all the provinces.The outcome of probating a Will is the issuance of a Certificate of AppointmentA Will must be probated in one of two instances: The deceased owned real estate in Ontario at the time of their death, either in their name alone or held a tenants-in-common interest in the said real estate (subject to specific exclusions); orThe deceased owned financial assets, including bank accounts and investments, that were in their name alone, did not have beneficiary designations attached to them and held a value over a certain threshold amount.The probate application usually requires the following documents:An original copy of the WillAn affidavit of execution, signed by one of the witnesses of the Will, attesting to being present and having witnessed the signing of the WillProof of death. A copy of the death certificateCourt ValidationNotwithstanding that probate may not always be required, in some cases, an executor may still probate the Will to ensure that the deceased’s Will is validated by the court as the final version and the last wishes of the testator. This is because once a Will is probated, the Will is recognized by the Court as the valid last Will of the testator and unless there are extenuating circumstances to the contrary, the Will cannot, usually, be over-turned once it has undergone probate.Usually, an executor or estate trustee will work with a lawyer with the probate procedures and processes.Administrative Issues, Potential Beneficiary or Creditor ChallengesIn accordance with Ontario law, executors must probate a Will if the estate meets the criteria required for probate. In addition to legal issues, the executor will encounter numerous administrative issues and challenges, including:The deceased’s financial institutions will most likely deny communications or access to fundsPension companies will most likely deny communications or access to fundsLand title office will most likely deny the transfer of real estateAt a minimum, these institutions and companies will need proof and proper validation, including:Death certificateA Will and proof of the Will’s validity and version (difficult without probating the Will)Proof that you are the executorAll the documentation you provide is valid enough that they won’t be sued if anyone contests the WillFinancial Institution RefusalThese institutions are risk averse and won’t risk transferring funds to the wrong person or accepting a version of a Will that may be contested. A non-probated Will has too many risks associated with it. Approved and probated documents (Will) from provincial courts provide legal protection for these institutions.What Happens If There Is No Will?IntestateIf a person dies in Ontario without a Will, Ontario law would declare them as ‘intestate’. Their estate may be distributed based upon the Succession Law Reform Act and provincial rules. This means that someone will need to apply to the Court to be appointed as the executor.The court will need proof that no Will exists. They will need to see ‘reasonable’ (and documented) searches for a Will. Checklists. What Do I Do NextAlso included in our ‘A Hands-On Guide for the First (or Second) Time Executor’ blog post are detailed checklists that an executor would find beneficial in their executor role.Meet With Your Executor While You Are Still AliveIt is important to speak with your executor proactively while you are still alive. When executors understand your Last Will and Testament in detail, along with your preferences and wishes, they will be more effective when the time is needed. Meet with your executor and review your Will with them, ensure they know the Will’s location and any other important information or items they will need.Executor AccessThese checklists would also be beneficial in the planning and preparation of a person’s Last Will and Testament. This includes ensuring that the executor has required access, knowledge of the Will’s location, clear instructions, and stakeholder contacts, which will be required to fulfill the wishes within your Last Will and Testament, including the ability to:Make funeral arrangements and approve organ donation, if requestedPerform a detailed inventory and list of all assets and liabilities, including real estate and cash. Including testators bank accounts, life insurance, financial interests in estates or trusts and investments. Include deposit accounts and cash available at banks, credit unions, trusts, and other financial institutionsSecure all testator assets, ensure they are safe. Identify and protect the deceased’s accounts and get them under executor controlAdminister and manage your estateEasily locate and review your Last Will and Testament. This is just one of the topics to discuss with the executor before you pass on, especially your funeral arrangements. Knowing the location of your Will and details of your financial affairs beforehand is essentialUnderstand the details to allow the continuing of paying your billsEnsure that the executor is aware of all your liabilities and that they are paid out, including your taxes, debt, and creditor obligationsUnderstand the instructions in your Last Will and Testament which provide details of the distribution of the residue (after liabilities) of your estate to the beneficiaries and to those who have entitlements from the estateHave a thorough understanding of the Will and your wishes and instructions. The Will outlines the responsibilities that you have requested of the executorOpen an Estate Bank Account. For the purposes of estate administration and distribution, open a new ‘estate bank account’ for estate and asset proceedsInstructions for possible temporary care of children and petsLocating, identifying, securing, appraising, and protecting estate assets (real estate, banking, investments, life insurance). Taking control and possession of those assets and preserving them for distributionReview insurance and ensure estate assets are covered by insurance (fire, perils)Locate, notify your beneficiariesDetails to cancel newspaper and magazine deliveries etc., or other deliveries to the homeDetails to cancel credits cardsReturn important documents or obtain instructions for passport, driver’s license, health cards, marriage documents etc.Gift, reassign, destroy, or dispose of your technology, including tablet computers, desktop computers, cell phones, laptops, password details etc. Provide instructions to the executor.Manage your pension details and any necessary documentation. Ensure that pension and income support payments have been stoppedComplete your tax obligations. Including current and previous years income tax returns need to be submittedYour instructions for personal belongings, including household goods, furniture, artwork, any collections, automobiles. etc. These items will need to be valuated and have adequate insurance during the executor period until closingIf applicable, contacting your employer to determine any outstanding salary or bonuses, death benefits, or other amounts owingContact your essential resources, lawyer, accountant, funeral home, bank (new estate administration bank account) real estate agent, if necessary, etc.If applicable, contact Veteran Affairs if you were a veteran, validate any potential death benefitsDetermine any business interests and outstanding contract obligations or assets. Determine whether the business should be closed or kept in businessProvide beneficiaries a copy of the Will or in situations where a specific bequest was made, provide beneficiaries a copy of the excerpt from the Will detailing what gift was left to themContact Government of Canada or pension provider(s) to cancel pension benefits and apply for death benefitsCancel other subscriptions or accounts, including cable, mobile phone, land line, internet, club memberships etc., if not terminated in the previous Initial Checklist in section oneInvestigate and determine the deceased ‘digital assets, including social media, websites, and email addresses, fulfill the deceased instructions with these accounts. Close accounts if applicableEnsuring that the items in this checklist are up-to-date and in order, and easily accessible by the executor of your estate will help make the transition of your end of life wishes and preferences less challenging for your family and beneficiaries at a very difficult time. The Role of a Lawyer with Your Estate PlanningThe role of a lawyer in your estate planning is to provide legal advice that is current, thorough, and compliant with the changing estate and trust laws of Ontario.The role includes advice related to:Creating a comprehensive estate planCreating Wills and TrustManaging the administration of their estateAssisting with Probate proceedingsTax planningEstate litigationInheritance lawsProtecting assetsIf necessary, assisting clients with the court, and representation, if requiredLegal Advice BenefitsHaving a lawyer assist you with your estate planning can be very beneficial in ensuring that your loved ones get the help they need promptly in the event of your passing away. A lawyer can ensure that your Last Will and Testament, Powers of Attorney and if required a Trust are accurate and prepared in compliance with the laws in Ontario and in Canada.Your lawyer can help navigate the complex and changing laws related to Probate, Tax, Estate Planning, Powers of Attorney and Trusts. They can help you create a detailed, personalized, and customized estate plan based upon your needs, financial situation, and future goals.If any of the components of your estate planning, your Last Will and Testament, Powers of Attorney and Trust(s) are inaccurate, improperly prepared, or not in compliance with the law, you may be adding unnecessary frustration and complexity for your loved ones at a time they need help the most Next StepsIn addition to having our estate planning house in order, preparing for our eventual end of life is a normal occurrence for all of us. Some people write letters to family, beneficiaries, and their executor prior to their passing away, with their end-of-life estate planning next steps.Others begin decluttering and other activities to save their loved ones from the arduous task of disposing of household clutter and unwanted items.If you haven’t done so already, selecting a lawyer to assist you with your estate planning and choosing an executor (and co-executor, alternate) would be two of the first tasks as next steps.What information to be prepared with prior to contacting a lawyer. Your lawyer will let you know in advance which documents to bring with you during your first consultation and meeting, these documents may include:Birth CertificateMarriage or divorce certificatesFinancial information, banks, investment, and securities information, account #’sInsurance Policy details and policy #’sFuneral instructions, contact detailsExecutor information and detailsFinancial and advisor stakeholder contact names and detailsLocation of end financial documentation locationEstate Beneficiaries details, bequest instructions (specifics related to personal items or property)Your preferences related as to how you want your estate distributed to your beneficiariesIf young children are involved, Guardianship details, and the setting up of Trust(s) and estate distribution instructionsPowers of Attorney instructions. Who can act on your behalf? What powers to provide them etc.? Sources and Links Sources and Additional Information DisclaimerSources and links are provided for source credit and attribution, and for additional information purposes only. Nichols Law is not affiliated, associated, authorized, endorsed by, or in any way officially connected with any of the sources or links provided.Nichols Law Professional Corporation ‘A Hands-On Guide for the First (or Second) Time Executor’Book, ‘Wills & Estate Planning For Canadians (for Dummies)’, October 2023, JoAnn Kurtz, JDRBC Wealth Management, ‘ Gifting Wealth While Living vs. Through a Will Upon Death ‘Ontario Government, ‘Estate Planning and Wills’,Investopedia, ‘Everything You Need To Know About Trust Funds in Canada’IG Wealth Management, ‘What Is Probate? And How Could It Impact Your Estate Planning?’RBC Wealth Management, ‘Will vs. a Trust: Which One Is Right for You?’Ontario Government, ‘Office of the Public Guardian and Trustee’Scotiabank, ‘Estate Planning for Canadians‘Arbor Memorial, ‘Why You Should Update Your Will and a Few Easy Ways To Do So’Advisor.ca , Funeral Arrangements and Disposing of Remains: The Executor’s RoleRBC Wealth Management, Charitable GivingOntario Government, ‘Estate Administration Tax’Toronto Star, ‘Every Canadian Should Have a Comprehensive Estate Plan’Securian Financial, ‘Naming a Beneficiary: What You Need To Know’Government of Canada, ‘Why It’s Important To Have a Will’PolicyAdvisor , ‘ How Life Insurance, Probate, and Wills Work ‘CTV News, ‘Everyone Should Have a Will’: Survey Finds Half of Canadians Are Without a WillToronto Star, Homeowners Should Seek Legal Advice When Estate PlanningArbor Memorial, ‘ 10 Tips To Help You Write Your Will ‘RBC Royal Bank, ‘5 Key Elements of Estate Planning’Wealth Management Canada, ‘Estate Planning in Canada: A Checklist’Toronto Star, ‘Passing Assets to Your Heirs Without Probate and With Personal Liability Protection’Wealth Management, ‘What Happens if You Die Without a Will in Canada?’Toronto Star, ‘Optimize Your Estate Plan With Life Insurance’RBC Wealth Management, ‘Will Planning Resources’IG Wealth Management, ‘How To Avoid Mistakes When Making a Will — And Other Estate Planning Tips’Angus Reid Institute, ‘Lacking the Will: Half of Canadians Say They Don’t Have a Last Will and Testament, Including One-in-Five Aged 55+’Toronto Star, ‘Real Life Succession: Am I Too Young — and Too Broke — To Worry About Estate Planning?’IG Wealth Management, ‘The Four Times You Need To Update Your Will’Canada Life, ‘What Happens if I Die Without a Will?Toronto Star, ‘4 Reasons Canadians Are Rethinking Their Estate Plans’IG Wealth Management, ‘What Is a Power of Attorney, and Why Do You Need One?’Toronto Star, ‘From Cremation to Estate Planning, Here’s How To Keep the Cost of Death Down’Canada Life, ‘How To Write a Will’Toronto Star, ‘A Guide to Talking to Your Family About What’s in Your Will’IG Wealth Management, ‘What Is a Living Will? And How To Make One’,Toronto Star, ‘I’ve Been Asked To Be Executor of My Parents’ Estate. What Are the Responsibilities, and Can I Get Paid?’Book, ‘The Essential Canadian Guide to Estate Planning’, 3rd Edition, Kevin WarkBook, ‘Putting Your Affairs in Order’ G. Edmond BurrowsBook, ‘Estate planning For The Savvy Client’, Mary L. Barrow Esq.Understanding Estate planning, Wills and Powers of Attorney, Nichols Law Professional CorporationI’m the Executor of an Estate, What Are My First Steps?, Nichols Law Professional CorporationCBC, Finally Going To Make a Will? Here’s What the Experts Say You Should ConsiderRLB Chartered Professional Accountants, ‘5 Reasons You’ll Need Support As the Executor of a Will’The Globe and Mail, How To Create a Legal Will in CanadaRoyal Bank Wealth Management, ‘Choosing an Executor or Acting as One?’National Bank, ‘What Does an Executor of Will or Estate Administrator Do?’Edward Jones, ‘What Does It Mean To Be an Executor?’RBC Wealth Management, ‘What Is an Executor? Things You Need To Know’Investopedia, ‘5 Things To Consider Before Becoming an Estate Executor’The Wall Street Journal, ‘Why You Should Write a Letter to Your Executor–And What To Say in It’ Ontario Government, ‘Apply for Probate of an Estate’Investopedia, ‘The Executor Checklist: 7 Tasks Before They Die’Canada Today, ‘What Should I Say When Someone Asks the Most Dreaded Question in Personal Finance: Will You Be My Executor?’CISION/CNW, CIBC, ‘CIBC Poll: 84% of Canadians Have Named a Family Member or Friend To Administer Their Estate’Canadian Family Offices, ‘Five Mistakes To Avoid When Appointing an Executor for Your Estate’MoneySense, ‘What To Do if You Don’t Trust the Executor of a Will’Toronto Star, ‘He Agreed To Be Executor of an Estate — It Cost Him Seven Years of His Life and $100,000’Scotia Wealth Management, ‘Estate Planning Risk and Rewards’IG Wealth Management, ‘5 Qualities of a Successful Executor’Raymond James, ‘The Role of the Executor’Manulife, ‘The Role of the Executor’Scotia Wealth Management, ‘’10 Things To Prepare for as an ExecutorInvestopedia, ‘The Executor Checklist: 7 Tasks Before They Die’ Financial Post, ‘Better Late Than Never, but Everyone Should Have a Will To Put Everyone’s Mind To Rest’Investopedia, ‘Estate planning: 16 Things To Do Before You Die’Servus Credit Union, Executor Assistance GuideBook, ‘Executor Help; How to Settle an Estate’ by David. E. EdeyBook, ‘The 50 Biggest Estate planning Mistakes’, Jean Blacklock and Sarah KrugerBook, ‘Estate planning 101’, Vicki Cook and Amy BlacklockBook, ‘The Canadian Guide to Will and Estate planning’, Douglas Gray and John BuddBook, ‘How Executors Avoid Personal Liability’, Lynne Butler A Hands-On Guide for the First (or Second) Time Executor Posted on May 29, 2023Introduction About This GuideBased upon our numerous interactions with our clients and the questions they ask us, we’ve provided five sections within this guide to help you with the executor role research journey and help answer some of the questions you may have:The Role of an ExecutorChecklist of Executor TasksWhat Is Probate?What Happens if There Is No Will?What Happens if I Can’t Find the Original Will? Being Named ExecutorThere may be a time in the future when someone close to you, perhaps a parent, a sister or brother, an uncle, or even a close friend, asks you to be their executor.Being named as an executor could be a great honor and an opportunity to help a good friend or loved one, perhapssomeone who has been there for you in times of need.In the event you have already been appointed as executor, you may have many questions regarding your duties and responsibilities.In many cases, people don’t think about what’s involved in being an executor, until after the testator has recently passed away, which can add complexity to an already emotional and challenging time for the executor.Accepting the Role as ExecutorAccepting the role as an executor should include some reflection, research, and analysis to ensure that the role is a fit for you.In addition to following the deceased (testator) instructions, you will also need to safeguard the assets of the estate.This may also be a good time to seek the advice of a lawyer and other relevant professionals.The deceased has trusted you to follow the directions detailed within the will and to fulfil the needs of the will’s beneficiaries, according to the will’s instructions and in accordance with Ontario law.An executor usually has these traits and skills:They are responsible. Executors understand that they can’t do this all on their own. They will need to know when to ask for help from professionals, including an accountant, lawyer, and others.As an executor, they have the authority and permission to hire professionals, including lawyers, accountants, and financial planners.They will need to be transparent, keep detailed records, correspond with all stakeholders, including creditors and beneficiaries. Among other duties, they will identify and keep track of the testator’s assets.Ability to do the work required. Acting as an executor can be a time-intensive responsibility, and there are deadlines. Among other responsibilities, the role involves the identification, valuing, securing, and distribution of the testator’s assets.An executor needs to have the time and competency to fulfill this role. The executor must expect and be prepared for the unexpected.In addition to numerous legal requirements, and tax returns, there are many forms and administrative documents which will need the executor’s attention along with all necessary communication to the will’s stakeholders, including interaction and communication with creditors, beneficiaries, and family members.The executor has high integrity and trustworthiness. The testator has put their trust in this individual as executor and is entrusting them with their instructions and wishes, in compliance with the law. The executor is expected to act on the testator’s behalf, and in the beneficiaries’ best interests.They need to be unbiassed, independent and impartial. They can identify conflicts of interest and act upon the wishes of the testator with the highest integrityAs a result of being asked to be executor, you may have many questions in mind, including:Should I say yes or no right away?Am I qualified?What is the role of an executor? And what would I do next?What will other family members think?Will my role as executor damage my family relationships?Am I at risk? Will I be sued by beneficiaries? Will they be angry at me? Do they need to approve my decisions?How much time will this take? Will I be paid for my time and expenses? Do the beneficiaries need to approve my expenses and time?Who can help me?Is there a will?Where is the will?What is probate?Talking to the Testator While They Are Still AliveThese are all pertinent and applicable questions. If possible, many of these questions should be asked of the testator while they are still alive, especially the location of the will, inventory of assets, their financial contact information, along with the testator’s lawyer and accountant names and contact information.This guide will highlight important items which will try to address the many executor role and estate administration procedures.Will LocationOne of the first things you will do as an executor is to locate the will and accompanying documents.Will you be able to locate these documents when needed? If the testator lives alone, do you have a key(s) to their home? If they have a spouse or children, are they aware that you are executor, and they are available to support you when the time arises?What Do We Do Next?One of the first questions we receive from our clients when they have been asked to be an executor is usually “What do we do next’’?Receiving counsel, guidance, and direction, based upon a client’s unique circumstances can often be very overwhelming, which leads us to one of the last questions asked at the end of a first client meetings, which is “Is there some type of guide to help us through the executor role”?This guide is written for those individuals who have been named as an executor and are uncertain what to do next or who can help them with this role.Guide ObjectiveOur objective with this guide is to help you with some of these questions.In addition, we will also focus on some of the most often asked questions that our clients have requested of us and provide you with possible next steps and insights about being an executor of an estate.In advance of passing away, a loved one can take many proactive measures to prepare their will.Although the named executor can perform many of these steps in advance with the living testator prior to their death, this guide will focus mostly on ‘after testator death’ activities.Ask for HelpThe executor is not expected to do the legal work, those functions are the responsibility of a lawyer and paid by the estate.Many executors are not aware that they are permitted to talk to and receive assistance from advisory professionals related to the estate, including lawyers and accountants, and other professionals.In this brief guide, we have attempted to provide as much information as possible. However, it is difficult to cover all the topics and information related to being an executor.If you need additional or expanded information related to these topics, we have included a robust collection of source materials and link sources at the end of our guide within the Sources and Additional Information section, or alternatively you can always contact us at our office for further information or clarification. A Hands-On Guide for the First (or Second) Time Executor 1. The Role of an ExecutorIf you have been asked to be the executor (also known as Estate Trustee) of a will you should be aware of the responsibilities and duties of this role prior to accepting.Executor DefinitionThe role of an executor can be best defined as the individual who has been named by the deceased (also known as decedent or testator) in a will. They are responsible for following the instructions left by the testator, in their will.When acting as the executor, you will need to act and perform this role with the highest competence and integrity.The Ontario courts and the beneficiaries will need to be satisfied that the estate has been administered appropriately and accurately.Can the Executor Also Be a Beneficiary?Another question we often answer is “Can the executor or estate trustee be a beneficiary?” The answer is “yes”.The living spouse of the deceased is often named as the executor, and the deceased’s children are also often named as an executor, in most cases they are often also beneficiaries.What’s the Difference Between an Estate Trustee and an Executor?For the purposes of a deceased’s will in Ontario, the two terms are very similar, and the terms often interchanged.In Ontario the term executor is also called the ‘estate trustee’, most often by the courts when the will is being probated.The courts don’t usually refer to the term ‘executor’, the courts usually use the term ‘estate trustee’.For the most part, wills in Ontario don’t usually use the term ‘estate trustee’, unless there are more complex trusts set up in the will.Many wills in Ontario still use or have used the terms “Executor, ‘Executrix’, ‘Executors’ or Trustee’. Because the term is gender neutral, the term ‘estate trustee’ may be used more frequently in wills today.The estate trustee is either named in the will or appointed by the court if the deceased did not have a will. As specifically detailed by the Ontario Government, the estate trustee is responsible for:Winding up the affairs of the deceasedPaying taxes, bills, and any other debtsCollecting the estate assets and distributing the residue of the estate to those who are entitled to it (for example, the remainder after all liabilities are paid)A person is not obligated to act as an executor or estate trustee. You may be ineligible to be ‘Estate Trustee’ without a will if you have claims against the estate, as this would be considered a ‘conflict of interest’.There are numerous items that need attending to, these are some of the first things you should take care of:Initial ChecklistMaking funeral arrangements and approve organ donation, if requestedObtain a death certificatePerform a detailed inventory and list of all assets and liabilities, including real estate and cash. Include testators bank accounts, life insurance, financial interests in estates or trusts and investments. Include deposit accounts and cash available at banks, credit unions, trusts, and other financial institutionsSecure all assets, ensure they are safe. Identify and protect the deceased’s accounts and get them under executor controlArrange for asset valuations and appraisalAdministration and management of the estateLocate and review the will (one of the topics to discuss with the testator before they die, especially funeral arrangements). Knowing the location of the will and the financial affairs of the deceased beforehand is essentialRetain a lawyer, who can counsel you with the executor role, and let you know if the will needs to be probated. If a will doesn’t exist, they can help you apply for the ‘Certificate of Appointment of Estate Trustee Without a Will’Continue paying the deceased billsEnsuring that the deceased liabilities are paid out, including taxes, debt, and creditor obligationsThe distribution of the residue (after liabilities) of the estate to the beneficiaries and those who have entitlements from the estateKeep detailed records, including financial records, copies of all receipts, communications with all estate stakeholders, the time/record of the time you spent administering the estateReview and gain a thorough understanding of the will and the testators wishes and instructions. The will outlines the responsibilities that the testator has requested of the executorEstate Bank Account. For the purposes of estate administration and distribution, open a new ‘estate bank account’ for estate and asset proceedsPossible temporary care of children and petsHelp manage family disputes related to the estateLocating, identifying, securing, appraising, and protecting estate assets (real estate, banking, investments, life insurance). Taking control and possession of those assets and preserve them for distributionReview insurance and ensure estate assets are covered by insurance (fire, perils)Locating, notification of beneficiaries. Meeting with family and beneficiaries, when requiredCancel newspaper and magazine deliveries etc. , or other deliveries to the home. Which also limits any unwanted attention that the home is no longer lived in or unattended toGo to the post office and re-direct the deceased mailThere are other executor role duties and responsibilities, which we will outline in the ‘Checklist of Executor Tasks’ section, however these are the initial steps you need to attend to immediately.The executor is not expected to do the legal work, those functions are the responsibility of the lawyer and paid by the estate.If the person who has been named as executor or estate trustee declines or cannot act, then the beneficiaries of the estate may nominate a person to act as an estate trustee.A court appointment of an executor will be required in one of the following circumstances: Deceased left no will;The will doesn’t name an executor or trustee;The executor’s appointment is being challenged – in such instance, the Court may appoint an Estate Trustee during litigationCompensation for the Executor RoleDepending upon the complexity of the will and the amount of time and work performed by the executor, the executor may be entitled to compensation.Estate ValueThe value of the estate is taken into consideration when determining the executor compensation.If not detailed in the will, your lawyer can help you understand the fee structure for executors, based on previous executor fees which have been approved by Ontario courts.Fees are based approximately upon the deceased estate value and can range between 3-5% of the gross value of the estate.In instances where trusts are established, the executor may also be entitled to charge an annual management fee.The Trustees Act in Ontario allows for executor compensation. “A trustee, guardian or personal representative is entitled to such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about the estate, as may be allowed by a judge of the Superior Court of Justice.” ~ Ontario Trustee ActBeneficiary ApprovalThe act is not specific as to how compensation is calculated.Ultimately, the executor will have to receive the beneficiaries’ approval for the compensation they claim. Alternatively, if the beneficiaries and executor cannot agree on what is fair compensation, the executor can bring an application before the Court, referred to as “Passing Accounts”, to have the Court decide what compensation the executor is entitled to. 2. Checklist of Executor TasksThe executor role will need time, focus and administration efforts, including detailed record keeping.This work effort will also include communication, diligence, and sound decision-making based upon the testator’s instructions in the will and to also satisfy the creditors, beneficiaries, and the courts, if necessary.This section will include a detailed checklist for the executor, after the death of the testator.Checklists Are UniqueNot all executor check lists are the equal, every situation is different, so your specific check list requirements may differ from the ones we have provided, that being said, we are confident that this Executor Supplemental Checklist will be of some value for the role you are about to provide.This list may also provide more ‘actionable items’ than you may encounter or need to perform, and it may not be all encompassing either.Our goal is to provide you with the most common areas to ’check-off’, and that you should consider for your executor role.These are helpful next steps once you have reviewed the ‘Initial Steps’ in ‘The Role of an Executor’ section.This checklist works hand in hand with Initial Checklist in the first section, many of the items in the Executor Supplemental Checklist could be included in the Initial Checklist, every situation varies and is unique.Executor Supplemental Checklist:If the executor has a key to the deceased home, this is a list of helpful documents to look for and to provide to your lawyer:Copy of the will and any notes related to the willLocation and key(s) to a Safety Deposit Box(s)Lawyers name who prepared the willInventory list of all the deceased assets, including cash, securities, real estate/property deeds, important or valuable papers, jewelleryDocuments and materials related to funeral arrangementsDocuments and materials related to income tax, accountants name and contact details, including tax returns, employment contracts, pay stubs, Notice of Assessments, etc.Personal notes about distribution of personal items or belongingsFinancial details, investment documentationReal estate details, mortgage, condo, or real estate investment documentationDebt details, banking statement, credit card statements.Cancel credits cards.Return important documents or obtain instructions for passport, drivers license, health cards marriage documents etc.Technology, including tablet computers, desktop computers, cell phones, laptops, password details etc. Decide what to do with the deceased’s technologyPension details and documentation. Ensure that pension and income support payments have been stoppedCurrent and previous years income tax returns need to be submittedTestator instructions for personal belongings, including household goods, furniture, artwork, any collections, automobiles. Etc. These items will need to be valuated and have adequate insurance during the executor period until closingIf applicable, contact employer to determine any outstanding salary or bonuses, death benefits, or other amounts owingContact your essential resources, lawyer, accountant, funeral home, bank (new estate administration bank account) real estate agent, if necessary, etc.Contact Veteran Affairs, if deceased was a veteran, validate any potential death benefitsDetermine any business interests and outstanding contract obligations or assets. Determine whether the business should be closed or kept in businessContact newspapers or other avenues to advise potential creditors of the testator’s passingPrepare a contact and notification list for all relevant stakeholders, including testators’:financial contactswealth advisorlawyersaccountants/bookkeepers/tax contactProvide beneficiaries a copy of the will or in situations where a specific bequest was made, provide beneficiaries a copy of the excerpt from the will detailing what gift was left to themContact Government of Canada or pension provider(s) to cancel pension benefits and apply for death benefitsCancel other subscriptions or accounts, including cable, mobile phone, land line, internet, club memberships etc., if not terminated in the previous Initial Checklist in section oneInvestigate and determine the deceased ‘digital assets, including social media, websites, and email addresses, fulfill the deceased instructions with these accounts. Close accounts if applicable.Estate Administration and Distribution ChecklistThe administration and distribution of an estate can take some time to conclude. In most cases, a simple estate can take a year or two to close, and more complex estates 2 years or more.The Estate Administration and Distribution Checklist is also closely integrated with the Initial Checklist and Executor Supplemental Checklists:In-depth reviewing of the will with your lawyer, accountant, or other advisory professionalDiscuss with your lawyer or accountant how to approach the closing of accounts, asset transfers or disbursements related to the estate, to the new ‘estate bank account’Determine if a certificate of appointment is required (probate)Pay out all the estate’s debts. Ensure you record these transactions and receive detailed records and receiptsTax returns. Make certain a tax return is filed for any previous tax years that are outstanding, and the current year. Determine if any tax clearances certificates are required from Canada Revenue Agency (CRA). An accountant may be of assistance with these mattersPrior to preparing for final distribution of the estate, ensure all obligations to the Canada Revenue Agency (CRA) are fulfilledThere may be circumstances when the beneficiaries are entitled to an ‘interim’ distribution of funds. This is an area where your lawyer and accountant will be of high value and importanceThere is an ‘order of operations’ related to the distribution of an estate’s proceeds, in most cases the funeral fees are paid first, then government (federal first, then provincial) taxes gets paid next, then the creditors are paid and then the beneficiaries are paid out.The executor is responsible for this ‘order of operations’ distribution and administration. If an ‘interim’ payment is required, the executor will need to assess and validate the request to ensure the order of payment operations is completely fulfilled and paid outDistribute assets to beneficiariesDistribute personal items in accordance with the instructions in the willCreate and establish any trusts in accordance with the instructions in the willPrepare final account for the beneficiaries, including an account of all estate’s assets, liabilities, and expenses. Present the final account to the beneficiaries. If applicable, submit the account to the court for court approvalClosing Costs and Final Distribution. Closing of all the estate’s accounts upon final completion 3. What Is Probate?Probate is one of the terms we get the most questions about. In fact, probate isn’t so much a place or event, it’s something that needs to be performed in accordance with the Succession Law Reform Act.In the past, Probate or Probating a will was called ‘Letters of Probate’.Every province is different, we will be focusing on the laws relating to Probate in Ontario, however the logic is mostly the same across all the provinces.The outcome of probating a will is the issuance of a Certificate of Appointment.Probate ProcessEssentially, probating a will is the process of proving a will and certifying the executor as the Court appointed individual with the authority to take control of the testator’s assets.Probate is not, generally, the process by which an executor is appointed to administer an estate. The authority to administer an estate is granted to the executor, by the testator, through naming the executor in that role, within their will.Probate is required in some instances, where the estate contains assets that require a “certification” from the Court, in order for the executor to take control of, transfer and/or sell those assets. To be clear, not all estates need to go through probate.Court ValidationNotwithstanding that probate may not always be required, in some cases, an executor may still probate the will to ensure that the deceased’s will is validated by the court as the final version and the last wishes of the testator. This is because once a Will is probated, the will is recognized by the Court as the valid last will of the testator and unless there are extenuating circumstances to the contrary, the will cannot, usually, be over-turned once it has undergone probate.Usually, an executor or estate trustee will work with a lawyer with the probate procedures and processes.Certificate of AppointmentA clarification about the Certificate of Appointment. As mentioned earlier, the outcome of probate or ‘probating an estate’ is a Certificate of Appointment. The Certificate of Appointment is usually a one-page document which the Ontario Superior Court provides, which certifies the appointment of the executor.Obtaining a Certificate of Appointment is not, generally, the process for appointing an executor. Where there is a will, the executor’s appointment comes from the will. In instances where there is no will, an executor may be appointed via applying for a Certificate of Appointment. A will must be probated if the deceased (testator) in one of two instances:The deceased owned real estate in Ontario at the time of their death, either in their name alone or held a tenants-in-common interest in the said real estate (subject to specific exclusions); orThe deceased owned financial assets, including bank accounts and investments, that were in their name alone, did not have beneficiary designations attached to them and held a value over a certain threshold amount.Land Registry OfficeIn the first instance, the executor may be required to obtain a Certificate of Appointment, as the Land Registry Office will generally not permit an executor to transfer or sell a Testator’s real estate, without first obtaining a Certificate of Appointment.Bank or Investment Firm RequirementsIn the second instance, the executor may be required to obtain a Certificate of Appointment to satisfy either the bank or investment firm, which currently holds the Testator’s financial assets, before they will hand over the money to the executor.There are some exceptions to the scenarios above which may exempt an executor from needing to obtain a Certificate of Appointment. These exceptions should be assessed on a case-by-case basis by a lawyer.Asset ValuationWhere a Certificate of Appointment is required, the executor must value the assets owned by the Testator, complete the necessary Court application documents, and pay estate administration tax on the value of the assets. Estate administration tax is equal to approximately 1.5% of the value of the assets.Where a Certificate of Appointment is not required, no application to the Court is necessary and estate administration tax is not payable.If the deceased doesn’t have a will or for some reason the executor can’t be found or is unable to perform the executor role, then the courts will need to appoint an estate trustee or administrator.The probate application usually requires the following documents:An original copy of the willWill additions or supplements, explaining changes or revokes of a willAn affidavit of execution, signed by one of the witnesses of the will, attesting to being present and having witnessed the signing of the willProof of death. A copy of the death certificateIn addition to the application documents above, the following court forms will need to be completed:Application Form 74A (Application for a Certificate of Appointment of Estate Trustee)Affidavit of Service Form 74B (Affidavit of Service of Application for a Certificate of Appointment of Estate Trustee)Affidavits, as required. Evidence that is required by legislation and the court rulesDraft Certificate of Appointment of Estate Trustee Form 74COther forms related to Bond or RenunciationConsent to Applicant’s Appointment as Estate Trustee Form 74H, (needed where a person dies without a will and where there is a will, but the applicant is not named as estate trustee)Assets which usually do not require probate include:Jointly owned accountsRRSP’s, TFSA’s, RRIF’s with a named person as a beneficiaryInsurance proceeds with a named person as a beneficiaryInter vivo trusts. Assets in a trust which were created during the testator’s lifetimeGifts made during the testator’s lifetimeAn estate includes a person’s collective account of all their assets and liabilities, including their possessions and real estate at the time of their death.The only person who has the legal authority to distribute or manage an estate in Ontario is the executor.What Happens if a Will Is Not Probated?If a will doesn’t meet the probate requirements criteria (see criteria in this section), there shouldn’t be any issues with not probating a will. However, some executors elect to probate a will to ensure that the will they are using is authorized by the courts as the final version.Legal LiabilitiesFor wills that need to be probated, in addition to a serious legal liability for the executor, avoiding the probate process could also cause numerous administrative issues. In addition, the creditors and beneficiaries may take additional legal action for any errors or omissions.Administrative Issues, Potential Beneficiary or Creditor ChallengesIn accordance with Ontario law, executors must probate a will if the estate meets the criteria required for probate. In addition to legal issues, the executor will encounter numerous administrative issues and challenges, including:The deceased’s financial institutions will most likely deny communications or access to fundsPension companies will most likely deny communications or access to fundsLand title office will most likely deny the transfer of real estateAt a minimum, these institutions and companies will need proof and proper validation, including:Death certificateA will and proof of the will’s validity and version (difficult without probating the will)Proof that you are the executorAll the documentation you provide is valid enough that they won’t be sued if anyone contests the willFinancial Institution RefusalThese institutions are risk averse and won’t risk transferring funds to the wrong person or accepting a version of a will that may be contested. A non-probated will has too many risks associated with it. Approved and probated documents (will) from provincial courts provide legal protection for these institutions. 4. What Happens If There Is No Will? IntestateIf a person dies in Ontario without a will, Ontario law would declare them as ‘intestate’. Their estate may be distributed based upon the Succession Law Reform Act and provincial rules. This means that someone will need to apply to the Court to be appointed as the executor.The court will need proof that no will exists. They will need to see ‘reasonable’ (and documented) searches for a will.Will RegistriesUnfortunately, there is no provincial central registry for a will in Ontario. This leaves the burden of ensuring the executor is aware of the existence of a will and its location, up to the testator.We cannot stress this point enough, if your executor does not know that you have made a will and where it is, your estate could be processed on an intestacy basis.Court InvolvementIf a ‘will’ doesn’t exist, then the courts will need to get involved and the estate will be distributed in accordance with Ontario’s Succession Law Reform Act.The estate is defined by the assets and liabilities at the time of the testator’s death. The assets of the estate will be distributed based upon how they are owned.Estate Trustee AppointmentIn most cases someone will apply to the courts to ask for the authority to administer the estate (an estate trustee), usually someone who is a dependent upon the testator, someone who is owed money, or a relative. The applicant will need to apply to the courts, as detailed under Section #3, ‘What is Probate’.Multiple Applicants or DisputeIf there are multiple applicants or a dispute, then the matter will be referred to by a judge who will determine the most appropriate person to act as estate trustee, usually the closest relative has the right to be executor or estate trustee. They are appointed by the courts with an application for a Certificate of Appointment of Estate Trustee Without a Will.The courts and the Ontario government define an estate trustee as a person who is authorized and responsible for the affairs and possessions related to a deceased estate.The estate trustee (often known as the executor) is the person who has been named in the will or has been appointed by the court when the deceased did not have a will. There are occasions when there are multiple trustees named in a will.The role and responsibilities of the estate trustee includes the administration and management of the deceased last wishes as detailed in the terms of their last will and testament, (if a will exists), and in accordance with the laws of Ontario.5. What Happens if I Can’t Find the Original Will?Searching for the WillWhen a will is prepared, the testator can either retain the original signed will themselves or ask their lawyer to retain the original copy.In either case, the lawyer should provide a copy of the will to the testator, and in instances where the lawyer retains possession of the original signed will, provide a reporting letter confirming the location of the original will. This letter should be kept by the testator and the named executor should be given the name of the lawyer and the location of theses documents.Original or Previous Executor Family or FriendsPerhaps the executor named in the will has also passed away or is unavailable.When the testator asks a trusted person to be their executor, the testator may have provided the details of the will’s location and the lawyer named who prepared the will to the original executor. Contacting the family of the previous or original executor and requesting them to check the executor’s files may assist in its location.The location of the will, and the lawyer who prepared the will, should be given to the executor, (preferably in writing), to the executor.Document Will Search EffortsIf a will is known to exist and the location is unknown, all efforts should be exhausted to locate the will.These search efforts need to be documented, and the documentation provided to the court.If the will cannot be found, but a copy is retained, the executor can apply to the court to have the court recognize the copy of the will, as the valid last will and testament. In such instance, the court will review evidence from friends, family and professionals and decide as to whether the copy of the last will, reflects the deceased last wishes.Holographic WillThere may be instances when ‘proven’ handwritten documents are used, provided they are written in the deceased 100% actual handwriting and have been signed and dated by the deceased. These wills may be interpreted and considered as a ‘Holographic’ will.Reasonable efforts and searches will need to be taken to ensure that no will exists. A lawyer can help with the searches and ‘reasonable effort’Other alternatives for locating a will may include:Searching the deceased home. Desks, drawers, filing cabinets. Hiding in plain sight in a home office?Check with property the deceased has owned, leased, or rented. Ask people associated with the deceased at these locations if they may know the locations or know someone who may know the location of the willSafety deposit boxesDeceased’s lawyerContact local lawyers. Lawyers may be able to check private or commercial registries, or court records or archivesDocument your search activities, the courts may need themUnsuccessful Will Search EffortsIf the will can’t be found, or a ‘will’ doesn’t exist, then the next steps would be for a related individual to apply for a Certificate of Appointment (probate), to become appointed the executor of the estate, on an intestacy basis, under the ‘Succession Law Reform Act.’ SummaryWe’ve covered a great deal of information over these five topics.And as you can appreciate, there are many different facets, legal and financial hurdles, and unique circumstances that can make the role of an executor somewhat chaotic and overwhelming.We structured this guide based upon the real-world experiences which we’ve had with our own clients and included additional supplemental research from other useful sources.Most Challenging QuestionsWhen our clients approach us for executor assistance, it’s usually soon after the death of a family member or close friend. The questions they are most challenged with are:What does an executor do? What are their obligations, responsibilities?What is probate? When is it required and if it is required, what happens?What information do I need to gather up to probate a Will?Is there a step-by-step guide on things we need to check off as executors?What happens if I can’t find the original will or there is no Will?Whether a family member or close friend has requested you to be their executor, you don’t have to go through this process on your own. And it’s probably not a good idea to be isolated with this role, especially if you are also grieving.An estate allows you to utilize professional resources, like a lawyer, accountant, or financial advisor, etc. These resources can help guide (and help protect you) you through this challenging role.We trust that this guide will provide some direction and value while performing this important role.We’ve included one of our previous blog posts which may also be of interest to you.‘Powers of Attorney and Wills: 8 Estate Planning Tips in a Post-Pandemic World’If you would like additional information about Nichols Law, please visit our website. Sources and Additional InformationDisclaimerSources and links are provided for source credit and attribution, and for additional information purposes only. Nichols Law is not affiliated, associated, authorized, endorsed by, or in any way officially connected with any of the sources or links provided. What Is Probate? Plus 15 Other Will and Probate Questions Answered, Sun LifeEstate Administration Tax, Ontario GovernmentApply for Probate of an Estate, Ontario GovernmentOntario Trustee Act, Government of OntarioLaw Society of Ontario, ‘Locating a Will, Legal File or Document’Ontario Government, Administering Estates, Find a WillRLB Chartered Professional Accountants, ‘5 Reasons You’ll Need Support As the Executor of a Will’National Bank, ‘What Does an Executor of Will or Estate Administrator Do?’Edward Jones, ‘What Does It Mean to Be an Executor?’RBC Wealth Management, ‘What Is an Executor? Things You Need To Know’Investopedia, ‘5 Things to Consider Before Becoming an Estate Executor’The Wall Street Journal, ‘Why You Should Write a Letter to Your Executor–And What to Say in It’Ontario Government, ‘Apply for Probate of an Estate’Ontario Government, Archives of Ontario, How to Find Wills in Court RecordsInvestopedia, ‘The Executor Checklist: 7 Tasks Before They Die’Canada Today, ‘What Should I Say When Someone Asks the Most Dreaded Question in Personal Finance: Will You Be My Executor?’CISION/CNW, CIBC, ‘CIBC Poll: 84% of Canadians Have Named a Family Member or Friend To Administer Their Estate’Canadian Family Offices, ‘Five Mistakes To Avoid When Appointing an Executor for Your Estate’MoneySense, ‘What To Do if You Don’t Trust the Executor of a Will’Toronto Star, ‘He Agreed to Be Executor of an Estate — It Cost Him Seven Years of His Life and $100,000’Scotia Wealth Management, ‘Estate Planning Risk and Rewards’IG Wealth Management, ‘5 Qualities of a Successful Executor’Raymond James, ‘The Role of the Executor’Manulife, ‘The Role of the Executor’Scotia Wealth Management, ‘’10 Things to Prepare for as an ExecutorInvestopedia, ‘The Executor Checklist: 7 Tasks Before They Die’Financial Post, ‘Better Late Than Never, but Everyone Should Have a Will To Put Everyone’s Mind To Rest’Investopedia, ‘Estate Planning: 16 Things to Do Before You Die’,Servus Credit Union, Executor Assistance GuideBook, ‘Executor Help; How to Settle an Estate’ by David. E. EdetBook, ‘The 50 Biggest Estate Planning Mistakes’, Jean Blacklock and Sarah KrugerBook, ‘Estate Planning 101’, Vicki Cook and Amy BlacklockBook, ‘The Canadian Guide to Will and Estate Planning’, Douglas Gray and John BuddBook, ‘How Executors Avoid Personal Liability’, Lynne Butler Powers of Attorney and Wills: 8 Estate Planning Tips in a Post-Pandemic World Posted on July 7, 2021Thinking About Preparing or Updating Your Powers of Attorney and Your Will? Here Are a Few Tips To Help You With Your Estate Planning in a Post-Pandemic WorldOver the past year our clients have asked us many questions about powers of attorney, wills and estate planning during a pandemic andthe effects of COVID-19 on the estate planning process. We’ve collected our insights based upon these experiences and are offering these insights to you in the form of an expanded blog post guide, which may help you with your estate planning activities.Estate Planning and ProcrastinationPerhaps you’ve never considered the need for a will or powers of attorney. Or maybe you’ve already had your will and powers of attorney prepared but haven’t looked at them in a while.If you are in either of those categories, don’t worry, you are not alone. According to a survey completed by the Angus Reid Institution, nearly 51% of Canadians do not have a will. Of those Canadians that do have a will, only 35% of those surveyed said their wills were up to date.Estate Planning FundamentalsDuring our many discussions about estate planning, a topic that has been top of mind for many individuals over recent months is, whether now is the right time to update or create an estate plan. The answer to this question is: yes.While the thought of preparing or even updating an estate plan may seem overwhelming at this time, we hope to put those feelings of anxiety to rest within this email update. With this in mind, we believe that our clients may benefit from an overview of what estate planning really is, its attributes and characteristics, along with some estate planning best practices.Your Estate Planning Consists of Three Primary Documents1. Power of Attorney for Property.2. Power of Attorney for Personal Care (formally known as a Living Will).3. Last Will and Testament.Estate Planning StrategyIn addition to the foundational three documents, there are other planning strategies that work together and form part of your over-all estate plan, including:Life insurance policiesThe use of beneficiary designations on registered accounts, such as RRSP’s & TFSA’sThe creation of a trust to hold and administer assets both during and after your lifetimeJoint ownership of assetsEach of these documents, and mechanisms have their own specific function both during your lifetime and after you have passed away.Powers of Attorney (Property & Personal Care)Power of Attorney for Property and Power of Attorney for Personal Care. These two types of powers of attorney are effective legal documents only while you are alive. That is, they may only ever be used while you are living. Once you pass away, these documents are no longer legally effective and cannot be used for anything.Both types of powers of attorney operate in a similar fashion. That is, you as the Grantor (the person granting authority), appoint one or more individuals to be your attorney for either Property or Personal Care. While these individuals are given the title of “Attorney”, they do not need to be a lawyer.A grantor may appoint anyone over the age of 18 to be their attorney for property, while they may appoint anyone over the age of 16 to be their attorney for personal care.Last Will and TestamentOnce you pass away, your Last Will and Testament takes over as the operative legal document pertaining to your estate planning. While you are alive, you may change your Will as often as you like, provided you have the mental capacity to understand those changes being made. However, the last form of Will you sign prior to your passing, will be the operative Will used to administer your estate.A Last Will and Testament is a document that serves two main functions:It appoints an individual or individuals to act as executor/executrix, who will be responsible for administering your estate after you have passed away; andIt provides instructions to your executors as to how you want your property administered and distributed upon your passing.Your executors are given the authority and responsibility of administering your estate. That is, they must collect and preserve your property and ensure that all your taxes and debts have been paid. Following which, whatever is left over (the “Residue” of your estate), is then to be transferred to the beneficiaries of your estate, in accordance with the instructions you have left in your will.Without a will, your estate will not have an appointed executor, nor will you have left instructions about how you wish your property to be distributed. In this situation, anyone, including a family member or spouse may make an Application to the Superior Court to appoint themselves as your executor. In such instances, your property will then be distributed pursuant to the default rules established by the Province of Ontario.Estate Planning and Your BusinessIf you are a business owner, maintaining an accurate and up-to-date estate and succession plan is a critical factor that should be considered at all stages of opening, operating and eventual winding-down or transferring of your business.Not many business owners think of succession planning when they first open their business. Focus on expanding one’s business generally takes precedence to considering how, and when the business may be wound-down or transferred. Nevertheless, succession planning and estate planning that deals with the transfer of a business are important factors to consider at every stage of operating a business.Succession Planning and Estate PlanningSuccession planning and estate planning are two distinct planning strategies. However, they are closely related and should be aligned with one another. Business succession planning is strategizing and planning about the transfer of your business, when, to whom and on what terms are essential elements of succession planning. Estate planning, deals with the transfer of assets (including business assets) following the passing of the business owner.In many cases, selling or transferring your business allows the business owner to retire and watch their business grow under the management of a carefully selected successor, sometimes someone in their own family. In some situations, business owner’s children have little or no interest in taking over the family business, which can simplify (or complicate) matters if there are multiple children or family stakeholders.Business Succession PlanningBusiness succession planning is usually performed outside of a will. If the business owner wishes the business to be inherited by someone after their death, the business assets can and should be dealt with in one’s Will. This is where estate planning, with a succession plan in mind, becomes pivotal.The complexity of estate planning increases significantly when a business is involved. The collaboration with a lawyer and accountant (tax) or a financial expert is essential. Your estate plan should include personal directives, wishes and assets, and your directions and preferences related to your business assets.Estate Planning Next StepsWhether you have a will or powers of attorney or not, or you haven’t looked at these documents in a while, there is no better time than the present to make the first steps in changing this.Without an up-to-date estate plan, your wishes regarding what happens with your assets and personal health, may not be realized. That’s because there are default rules set by the Province of Ontario, which deal with the circumstances in which someone is either incapacitated or passes away, without the necessary estate planning documents (a Will and Powers of Attorney).The default rules are fact specific and can lead to varying outcomes, depending on the individual’s circumstances. The biggest concern with these default rules is that they often do not reflect the intricacies of one’s wishes.Estate planning as a whole, is an opportunity to look ahead and decide in advance how your assets will be distributed and how you will be cared for.If you would like to discuss your estate planning affairs or related topics in greater detail, please feel free to contact us at 905-294-7780. We can create simple and complex estate plans, as required, to ensure that your wishes are met.Learn MoreIf you’d like to read more about how COVID-19 is impacting estate planning, and estate planning in greater detail and its best practices, we have linked several articles below discussing similar topics. In addition, please visit our Estate Planning section on our website.Sources and links are provided for source credit and attribution, and for additional information purposes only. Nichols Law is not affiliated, associated, authorized, endorsed by, or in any way officially connected with any of the sources or links provided.Sources and Additional InformationGovernment of Canada: Coronavirus Disease (COVID-19): Outbreak update‘What if something happens?’ Canadians’ interest in wills surges amid COVID-19The best time to start planning for your estate is todayOntario passes emergency order to let people remotely witness wills amid the pandemicCOVID-19 prompts flood of people to write, change their wills — but quarantine measures are getting in the wayEstate Planning if You Own a BusinessWell-to-Do Business Owners Face Estate-Planning HurdlesToo many Canadians have no willFive key questions in estate planning and wealth transfer A simple guide to estate planningSun Life Financial Estate Planning Guide – Business and PersonalRBC Estate Planning GuideGovernment of Canada – Estate planning checklistWhat not to do in estate planningReducing your estate costsOntario Government – Wills, Estates and Trusts