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FAQ: Wills & Estates
Find out the answers to frequently asked questions ("FAQs") with regard to family law and other legal issues.
What does “mentally incapable” mean in the context of Wills and Estates?
Being deemed “mentally incapable” means different things in different situations. What it means in a particular case depends on the context, and the unique factors pertaining to one’s circumstances.
Being “mentally incapable” means that that you are considered, legally, to not be in the right state of mind, for whatever reasons, to understand the information relevant to signing legal documentation. In other words, a person who is “mentally incapable” cannot make informed decisions about issues such as finances, health, etc.
It is important that people appoint someone to take the position of Power of Attorney in case he or she is ever deemed “mentally incapable”. A Power of Attorney is a legal document that gives someone of your choosing the ability to act on your behalf under specific circumstances. This means that the individual appointed will be granted the ability to make decisions regarding your personal life and estate in the event that you are deemed “mentally incapable”
You are able to appoint more than one person to be your Power of Attorney. In the event that you do choose more than one person, unless you outline in the documentation, “jointly and severally”, all the individuals will be required to agree on every decision that is made on your behalf while you are deemed “mentally incapable”. This is only possible if the Power of Attorney has been duly executed.
It is generally highly advisable that you consider taking every step necessary to protect yourself by executing a Power of Attorney.
What happens if I pass away without a will?
If a person dies without a will that person will have died “intestate”, meaning that the person who passed away gave up all of his or her power and freedom to choose beneficiaries, how much of the estate each beneficiary would obtain, when the beneficiaries would obtain their inheritance, etc. If a person dies intestate, one must look at the Succession Law Reform Act to determine who gets what.
In the event that a person passes away intestate and without issue, meaning without children or grandchildren, and the spouse by marriage is still living, the spouse will be given the entire estate.
If the person dies intestate and has issue, the spouse will generally be entitled to the Preferential Share which is prescribed by law and which is currently the first $200,000.00 of the estate. The balance of the estate will be divided between the married spouse and the deceased’s issue, depending on how many issue there are. If there is one married spouse and one issue, then the remainder of the estate will be divided 50/50. If there is more than one issue the married spouse will get 1/3 and the issue will equally share 2/3 of the remainder of the estate.
In the event that the beneficiaries are under eighteen years old, the court will hold onto the inheritance until the issues’ eighteenth birthday. In order for your surviving spouse to obtain the right to control your issues’ inheritance instead of the Court, he or she would be required to make an application to the Court in order to be appointed as the Guardian of the Property. In the event that the inheritance is needed by the living spouse in order to care for the issues, then it is possible to submit an application for prepayment to be made by the Court.
In the event that a person passes away intestate, and does not have any surviving spouse by marriage or surviving issue, the estate will be given to the next of kin.
If there is no next of kin or any individual of blood relation, the estate will become the property of the government of Ontario.
In the event that a person is in a common law relationship and dies intestate, the surviving common law spouse does not have a right to the estate.
In contrast, if one has a proper will, is will be enforced at the time of death. The deceased can, in the will, appoint an Estate Trustee or several Estate Trustees, which gives the individual of your choosing the power to manage all of your affairs immediately following your death. Without naming an Estate Trustee, someone, usually your next of kin, will ask the Court to be appointed as Administrator. They will have to obtain a Certificate of Appointment of Estate Trustee Without a Will.
Spouses who are married have the right to bring an application for an “equalization” of family property instead of taking the share that they were prescribed, even when there is a will that is being implemented. However, strict limitation periods apply and one should immediately consult with a lawyer.
For more information on the services we provide relating to wills and the distribution of estates if one dies intestate, contact Krol & Krol at 905.707.3370.
What is a Power of Attorney for Property?
An attorney for property is an individual who you appoint to handle any financial or property decisions, which are specified in this legal document. The document commonly known as a Powers of Attorney for Property ensures that the individual who you choose to be the guardian appointed to handle your finances has the right to make decisions regarding them. It ensures that this individual will not need to go through a costly court process to attempt to prove that he or she is in a position to handle your finances.
If you designate a Power of Attorney for Property, they will be authorized to do almost anything that you can do with regard to your finances, except make a will. However, these individuals only have this authority over your finances when you are still living. In the event that you pass away, executors will take over.
By law, the attorney you appoint is required to act within specific boundaries. The attorney is required to, avoid any conflicts of interest, keep all financial records, and to have his/her work audited by the court if found necessary.
You are able to outline within the Power of Attorney for Property whether or not you will be paying your attorney in accordance to the rates set out by the government regulations.
In the event that your Power of Attorney documentation is found to be out of date, lost, or does not comply with the new legal standards, then the documentation may be set aside and found invalid legally.
You should only name someone in your Power of Attorney that you know that they will accept the responsibility of being your agent, and therefore it makes sense to obtain their consent when naming them. You should also outline a backup attorney just in case there are any problems with the initial attorney named.
As a legal document, a Power of Attorney or Property can be interpreted by a judge and executed according to this interpretation. Therefore, it is of the utmost importance that precise and correct wording is used.
Contact Krol & Krol at 905.707.3370 for more information on the services we provide in the area of Wills & Estates.
My spouse died. Should I change my will?
If a spouse or a partner of yours passes away it is important to, when you are emotionally ready, make sure that the death of your spouse is taken into account in your will. There are certain things that individuals must look for when altering their will following the death of their spouse or partner.
Firstly, you need to make sure that you did not name your spouse or partner as the estate trustee. If you have, then you must name another. There are situations whereby you can, in your will, put in a clause that states that there will be a secondary estate trustee in the event of the initial estate trustee passes away. It is important to ensure that if your will has that clause, you are sure that the individual previously chosen is still the person you want to hold power over your estate following your death.
In addition, it is important to make sure that you name someone to be a power of attorney for property and personal care, other than your deceased spouse, in the event that you are not able to make decisions relating to these areas for yourself.
When looking over your will, you should also look to see if you had previously designated your spouse or partner as the beneficiary under your Registered Retirement Savings Plans or Registered Retirement Income Funds.
In addition it is important to note that if you remarry, your previous will becomes void. You must make a new will following the marriage.
For more information on wills in Ontario, contact Krol & Krol at 905.707.3370.
If my parent was paying child support before s/he passed away, am I entitled to support from her/his estate? Can I contest a will in Ontario?
There are situations whereby a parent, who was before death legally obligated to pay child support, dies and leaves nothing in a will for the children. In this type of a case, the children may have rights against the estate of their deceased parent.
If your parent was a resident of British Columbia when s/he passed away, it is possible that s/he is obligated, under British Columbia law, to name his children beneficiaries in his will.
In contrast, other provinces, such as Ontario, do not require an individual to name his or her children as beneficiaries of their estate and assets. If you were not named a beneficiary, and your parent was under a legal obligation to support you, it is possible for you to challenge, or contest, your parent’s will.
This is, however, extremely difficult to succeed at. When an individual writes their will, they are granted the ability and right to leave their assets with whomever they choose. In order to contest a will in Ontario, you must have a legal basis to do so.
An example of a legal basis upon which you can contest a will in Ontario, is if you fall under the criteria of having a right to your parent’s estate under the Succession Law Reform Act. The criteria an individual requires in order to contest a will in Ontario under these circumstances include being a member of a specific class, along with having a specific kind of relationship with the deceased. Then, the individual must prove that their parent was supporting them, or was legally obligated to provide support for them.
When the court is assessing your case to contest a will in Ontario, they will take into account your ability to support yourself, your heath, your needs, how close you and your parent were before the death, etc.
Then, the court will take your claim and balance it against the claims of other individuals (including other individuals that your parent supported before death and the beneficiary’s situation as outlined in the will).
Every case depends on factors are case specific. Factors that affect the decision of the court include, but are not limited to, the relationship between the individuals and the deceased prior to passing away, the deceased’s mental health, when the will was drafted, if it was a redraft, your claims as well as the claims of other individuals, and so on.
If you wish to contest a will in Ontario, you must do so within six months from the time that the court has issued a Certificate of Appointment of the will (i.e. within six months of the court legitimizing the will as legally binding). If you do not apply within this designated time period, and the estate has already been distributed, you will not be able to contest for the items already distributed.
For more information on contesting a will, contact Krol & Krol at 905.707.3370.
What is a Certificate of Appointment with a Will? Why would I need to obtain one?
A certificate of appointment with a will means that the courts have acknowledged and stamped the will as legitimate and binding.
Certificates of appointments are created so that financial institutions (for instance: banks) can protect their institutions. If not for certificates of appointments, in the event that the deceased had more than one will, with two different beneficiaries, the financial institutions may be in a situation whereby they may make a pay out to the wrong beneficiary.
In response, these financial institutions require legal proof that you are the sole estate trustee and beneficiary, and that they are paying out the estate to the proper person.
Once the financial institutions see a certificate of appointment with the will, then they are protected financially, and are no longer liable if they pay out the estate to the wrong individual.
In addition, a certificate of appointment with the will is needed in order for a beneficiary to sell or transfer the deceased’s real estate, as well as in order to transfer shares from the deceased to the estate trustee.
There are also situations whereby the content of the will may difficult to understand. By obtaining a certificate of appointment with the will you are clarifying the content of the will, ensuring you are caring it out in the right way, legally, and that your actions cannot be contested.
The will must be submitted to an Ontario court in order to be granted a certificate of appointment. In order to obtain one, the estate trustee must pay probate fees, which are also recognized as court fees.
It is also important to note that whether or not a certificate of appointment with the will is required depends on the estate in question and the circumstances surrounding the will and the estate left behind by the deceased.
For more information on wills and certificates of appointment, contact Krol & Krol at 905.707.3370.
Preparing a will: How do I prepare a will? Can I change my will?
A will is a legal document that is used to determine the division of an individual’s assets following their death. Preparing a will begins with the completion of a list of both your assets as well as your debts. This list should ideally include the components of any safety deposit boxes that you currently hold in your name, any items of sentimental value, and any family heirlooms you hold in your possession along with anything else you wish to pass down to anyone following your death. Then in preparing a will you must determine what goes to whom.
In situations whereby the estate in question is a large sum of money, or whereby the situation is legally complex for whatever reason, it may be in your best interest to hire a lawyer to assist you in preparing a will that best suits your situation. Another reason to obtain an attorney to help in preparing a will is to ensure it is legally binding and is resistant to being overturned, should there be disagreement with respect to the will after your death.
It is possible to change your will after the initial draft. Doing so requires either preparing a new legally binding document to take the place of the old one, or simply amending the present will.
It is important that you are of sound mind and in good health when creating as well when preparing a will, or altering a will in any way. If you are not sound of mind, and the will is contested, it is possible that the will not hold up in a court of law.
Once the will is completed, you must continue the process by giving the document to an executer, or some form of professional advisor. It will be the executer or the professional advisor’s responsibility to ensure that the will is read to the individuals included.
For more information on wills, or to retain a lawyer to draft a will, telephone Krol & Krol at 905.707.3370.
What are wills in Ontario? What happens if I choose not to have a will?
Wills in Ontario are legal documents that outline how one wishes to distribute their property upon their death. Without a legal will, your assets may not be distributed in the way that you wish. Wills in Ontario also minimize the possibility of tension between the surviving family members after the death of an individual. There are various types of wills; these include holographic wills, oral wills, and living wills.
Holographic wills are not witnessed by a third party and therefore seldom hold up in court. Oral wills have no written documentation and are rarely taken into account from a legal perspective. Living wills, in contrast to the other forms of wills, do not come into effect after the person in question passes away. A living will deals with who should be held responsible for decisions regarding medial care if an individual is not in a position to make such decisions for his or herself.
The best way to structure wills in Ontario in order to ensure the best odds of it standing up in court is to have the will in writing, and signed and witnessed by a third party.
There are many specific items that are not covered in the will. These items include but are not limited to money obtained by life insurance policy payouts, assets from retirement, assets owned by more than one individual, and so fourth.
If you do not have a will and you pass away without creating one, you are considered to have died intestate. If an individual dies intestate, one’s assets will be distributed according to the law through a set formula. This can lead to financial and emotional difficulties of family and friends, as the house may be sold, your family may be unable to continue to maintain their standard of living, and so on.
For more information on wills in Ontario, or to retain a lawyer to draft a will for you, contact Krol & Krol at 905.707.3370.
I am involved in a family law dispute, should I change my will?
The answer to this question is likely yes. If you are involved in a family law dispute, even if you and your spouse have settled all of the issues in your family law matter amicably, you should likely have a new will (and powers of attorney) drawn up.
A will sets out how a person would like his or her assets distributed upon his or her death. (A power of attorney sets out who you would like to appoint as an attorney to act on your behalf. An attorney is a person or persons whom you appoint to carry out your wishes during your lifetime.)
A separation and divorce does not nullify your will or undermine the validity of your will. Nontheless, once you are separated you will likely find that its terms are no longer appropriate. For example, while you were married you may have left items to your spouse. In view of the separation, you may now want to leave these items to your children or to another loved one.
At Krol & Krol, we provide guidance with respect to family law estate planning so that you can properly plan how your assets will be distributed upon your death.
The solicitors at Krol & Krol have experience with a broad range of family law issues in Ontario, as well as issues with respect to wills and estates. For a consultation with one of our solicitors with respect to a family law issue in Ontario, call 905.707.3370 today.