Introduction

At 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 Survey

A 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 Will

Not 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 Planning

Our 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 Milestones

When 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 Objective

The 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:

1. Estate planning.
2. Last Will and Testament.
3. Powers of Attorney (PoA).
4. 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 Trusts

Estate 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 available
• Trust(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 benefits

The Importance of Your Will and Keeping It Updated

In 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 Procedures

It 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 Distribution

If 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 Family

Creating 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 livelihood

Giving Your Property Away and Gifting While You Are Still Alive

One 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 applicable
• The experience and contentment of observing your beneficiaries benefitting from your gifts
• Possible reduction in probate fees and taxes

Proactive Tax Planning

It 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 Organized

Be Proactive

Once 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 Loop

Getting 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 location
• The 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, jewellery
• Documents and materials related to your preferred funeral arrangements
• Documents 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 belongings
• Financial details, investment documentation
• Real estate details, mortgage, condo, or real estate investment documentation
• Debt details, banking statement, credit card statements
• Location 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 cancellation
• Your Pension details and documentation
• Tax documentation location. For example, previous years income tax returns
• Your 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 owing
• Contact 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 benefits
• Details 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 business
• Contact newspapers or other avenues to advise potential creditors of the testator’s passing
• Prepare a contact and notification list for all relevant stakeholders, including your:

1. 1. financial contacts
   2. financial contacts
   3. wealth advisor
   4. previous lawyers
   5. accountants/bookkeepers/tax contact

• Contact 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 addresses

Additional 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 Will

We 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 Will

In 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. Beneficiaries

4. If necessary, and there are minor children, guardian instructions.

5. Trusts, if children are beneficiaries

6. 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 Will

If 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 Practices

Codicils 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 Mind

The 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 Tax
• Income Taxes of the deceased
• Income Taxes for any estate Trusts

In 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 Attorney

The 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 Care

The 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. 

Property

The 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 Investments
• Maintaining or managing property, including the buying or sale of property
• Collecting or paying debts or expenses

Without 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 Trusts

While 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 Decisions

Funeral

For 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 Testament

Death Benefit

As 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 Donation

In 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 donation

directives 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 Frequency

As 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 Appointment

A 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); or
• The 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 Will
• An affidavit of execution, signed by one of the witnesses of the Will, attesting to being present and having witnessed the signing of the Will
• Proof of death. A copy of the death certificate

Court Validation

Notwithstanding 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 Challenges

In 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 funds
• Pension companies will most likely deny communications or access to funds
• Land title office will most likely deny the transfer of real estate
• At a minimum, these institutions and companies will need proof and proper validation, including:
• Death certificate
• A Will and proof of the Will’s validity and version (difficult without probating the Will)
• Proof that you are the executor
• All the documentation you provide is valid enough that they won’t be sued if anyone contests the Will
• Financial Institution Refusal
• These 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?

Intestate

If 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 Next

Also 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 Alive

It 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 Access

These 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 requested
• Perform 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 institutions
• Secure all testator assets, ensure they are safe. Identify and protect the deceased’s accounts and get them under executor control
• Administer and manage your estate
• Easily 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 essential
• Understand the details to allow the continuing of paying your bills
• Ensure that the executor is aware of all your liabilities and that they are paid out, including your taxes, debt, and creditor obligations
• Understand 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 estate
• Have a thorough understanding of the Will and your wishes and instructions. The Will outlines the responsibilities that you have requested of the executor
• Open an Estate Bank Account. For the purposes of estate administration and distribution, open a new ‘estate bank account’ for estate and asset proceeds
• Instructions for possible temporary care of children and pets
• Locating, identifying, securing, appraising, and protecting estate assets (real estate, banking, investments, life insurance). Taking control and possession of those assets and preserving them for distribution
• Review insurance and ensure estate assets are covered by insurance (fire, perils)
• Locate, notify your beneficiaries
• Details to cancel newspaper and magazine deliveries etc., or other deliveries to the home
• Details to cancel credits cards
• Return 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 stopped
• Complete your tax obligations. Including current and previous years income tax returns need to be submitted
• Your 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 closing
• If applicable, contacting your employer to determine any outstanding salary or bonuses, death benefits, or other amounts owing
• Contact 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 benefits
• Determine any business interests and outstanding contract obligations or assets. Determine whether the business should be closed or kept in business
• Provide 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 them
• Contact Government of Canada or pension provider(s) to cancel pension benefits and apply for death benefits
• Cancel other subscriptions or accounts, including cable, mobile phone, land line, internet, club memberships etc., if not terminated in the previous Initial Checklist in section one
• Investigate and determine the deceased ‘digital assets, including social media, websites, and email addresses, fulfill the deceased instructions with these accounts. Close accounts if applicable

Ensuring 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 Planning

The 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 plan
• Creating Wills and Trust
• Managing the administration of their estate
• Assisting with Probate proceedings
• Tax planning
• Estate litigation
• Inheritance laws
• Protecting assets
• If necessary, assisting clients with the court, and representation, if required

Legal Advice Benefits

Having 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 Steps

In 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 Certificate
• Marriage or divorce certificates
• Financial information, banks, investment, and securities information, account #’s
• Insurance Policy details and policy #’s
• Funeral instructions, contact details
• Executor information and details
• Financial and advisor stakeholder contact names and details
• Location of end financial documentation location
• Estate Beneficiaries details, bequest instructions (specifics related to personal items or property)
• Your preferences related as to how you want your estate distributed to your beneficiaries
• If young children are involved, Guardianship details, and the setting up of Trust(s) and estate distribution instructions
• Powers of Attorney instructions. Who can act on your behalf? What powers to provide them etc.?

Sources and Links

Sources and Additional Information 

Disclaimer

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.

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