Got Questions About Estate Planning?
We've Got Answers!
What is a Will?
A will is a much more flexible legal document than most people realize. Its not a legal contract because a contract is between two parties. It is a special creation of the law and each jurisdiction has it's own rules about whether a document is a legal will or not. For example, in Ontario there are two different types of wills that are made legal. These rules are contained in the Succession Law Reform Act. Once you meet these bare minimum requirements there are many things you can do with a will. Most important, the will appoints a person or corporation as the executor of your estate and explains your wishes regarding the distribution of your property and assets after your death. It is also used to name a guardian for any minor children.
A will does not take effect until you die.
What will happen to my property if I don't have a will?
If there is no will at the time of your death, your assets and property will be distributed according to intestacy laws. These are extremely inflexible statues that can prevent your property from being given to the people you intend it to go to. The government says who gets what. In Ontario, the government says that your spouse gets the first $200,000 of your Estate. If your Estate is worth more than $200,000, then this has to be shared by your spouse and equally with your children. Your children's money, if they are minors, would be held by the government and then handed to them at 18 years old. If you have no spouse or children, then your parents would get your Estate. If you have no parents, then it would go to your brothers and sisters.
When should a will be changed?
Your will should be reviewed often. That’s one of the reasons that our law firm has decided to offer free updates. We never want people putting off a review of their estate planning documents because of the cost. Your documents may be invalid and need modified following a marriage, divorce, death of spouse or relative, the birth of a child, if your executor dies or you lose touch, or any other major changes in your personal or financial situation.
What is estate planning?
Estate Planning is the process of developing a plan and preparing documents to preserve, protect, and distribute estate assets before and after death for the benefit of loved ones and maybe charities. This planning takes into consideration tax minimization and administrative laws and regulations. It can also involve planning for the use of your assets for your care if you become unable to manage your affairs during your lifetime.
When you die, everything you own or have a right to gets gathered into something call your “Estate.” If you have a good estate plan, then everything that you own will be either transferred to your beneficiaries or held in an investment trust as per the instructions in your will. Things like life insurance and registered accounts (RRSPs, RRIFs and TFSAs) and joint property will automatically go to your beneficiary – these do not get included in the will. If you have a will then you will be able to say WHO will get your Estate and WHEN they will get it.
What is the process for getting my estate planning done?
This is not a complex process! To get started just a simple online questionnaire needs to be filled out. We take care of the rest for you. We provide detailed instructions on everything you need to think about when completing the questionnaire. The only other thing you need to do is to schedule an appointment to meet with us. You can come to our office in Mississauga or we can come to your home or office or other convenient location. We have appointment times days, evenings, and weekends to see your schedule.
What is probate?
Probate or Letters Probate is not what you think it is. Most people think that it is the process of validifying your will or transferring your assets to your family. Its neither of these. Probate is the process of officially confirming the appointment of the executor to do their duties. Its called the “Certificate of Appointment of the Estate Trustee.” There is a cost to getting Probate. Probate fees or probate tax (the Ontario Estate Administration Tax) is a fee paid to the government when your executor applies to the court to be officially appointed as your “Estate Trustee.”
Where should I keep my will?
You can keep your will in a fireproof vault at home or we can keep it in ours at our office. In fact will storage if one of the many benefits of getting your will done through our law firm! And is part of your Lifetime Membership!! Many clients used to keep their estate docs in safety deposit boxes. This is proving to be more and more of a problem when the docs are needed and no one who and where to find it. The keys get lost, etc. Please make sure your original will is in a safe fireproof place. If something happens to it – you cannot use a copy!
What is the difference between an executor and a trustee?
The role of the executor and trustee is different – even though they may be the same person. Things are often confusing because the actual legal name for the executor in Ontario is “Estate Trustee.” The executor is the person who administers your will and your estate. For example, they take care of the funeral, pay any debts, file tax returns, apply for probate if necessary and then the specific assets as per your will. The Trustee on the other hand, is to take care of any assets that need to be held in trust for any length of time. This explains why the beginning of the will talks about the executor (estate trustee) and then later in the will to the Trustees. What happens is the executor takes care of the assets at the beginning and then if there is a trust set up in the will, then the asset gets transferred to the trustee to manage it. The trustee actually becomes the legal owner of the trust fund. The executor and the trustee are bound by the same set of rules contained in the Trustee Act.
Can I select someone living outside Ontario as my executor?
Technically you can select any legal adult to be your executor, even if they live outside Ontario. However, we don't recommend selecting an executor who doesn't live in Ontario, because it's a lot harder for a foreign executor to get probate.
If I have named beneficiaries for my RRSP and life insurance and have different beneficiaries in my will, what happens?
The beneficiaries you have names on the face of the policy of your RRSP and life insurance will be entitled to those assets. Those assets don’t go in the will if they have already been transferred as per the beneficiary designation on the policy. The benefit of this is that you may avoid probate tax for anything that is not part of the will.
What if my family members can't find my original will when I pass away?
If your original was kept with the lawyer who prepared it, and you can’t get a hold of the lawyer any longer, then you can potentially find your will in the “lost will database” with the Law Society of Upper Canada. Lawyers are required to have a succession plan for wills in their care but as a fail-safe plan, the law society takes care of wills without a home. You should know where your will is at all times because if it can’t be found - it’s the same as if you never had one and the government rules will apply to your estate. A copy will not suffice.
Can my spouse and I have a different back-up executor or do our wills need to be mirrored?
I always suggest that the two spouses have the same back-ups for executors and beneficiaries. Otherwise you could have the weird result that things would end up different depending on who dies first. You want it to be the same no matter if one dies before the other or you both die together.
Do I need a lawyer to prepare my will? Is my will not valid if I use an online will template and have my friend witness my signature?
Yes, a will prepared and signed by you may be sufficient with two witnesses present may be upheld as valid. However, we do not recommend preparing your own will. Honestly, there are a lot of things that can go wrong. But as with anything… you don’t know what you don’t know! You may not prepare the document properly, you may incorrectly draft the contents, or you may leave out information. Also, the most common mistake is the way a will gets executed (fancy way of saying “signed”.) We make sure this happens legally and that the witnesses sign the appropriate affidavits. How will you know you got it right with no mistakes? Usually not until its too late!
If you have a signed will that you or another lawyer has prepared, why not send it to us for our review. That way you can rest easy that its not going to be a problem.
Is there a limit to the number of executors I can appoint?
You can select multiple executors. However, the more executors you have, the higher the chance of conflict and delayed decisions. If you decide to pick more than one executor, we recommend you include clauses in your will that deal with how decisions will be made by the executors and require mandatory arbitration rather your executors burning through your estate paying lawyers to go to court if there is a disagreement between multiple executors. Unless you are confident there would be no conflict, we suggest one executor and then many more as backups in your order of preference.
Can I do my will and powers of attorney myself?
We do not advise that you attempt this on your own. A lot of people have brought in wills and powers of attorney to review and we have found tons of mistakes. You don’t know if yours has a mistake unless you get it reviewed by a lawyer. The only chance of knowing if there is a mistake is to get it reviewed. If you don’t have a will, the money you would waste fixing mistakes is definitely worth paying a lawyer to do it right the first time. Don’t forget that our office offers free updates! SO you will only need to pay once.
What is probate tax?
Probate fees or probate tax (also known as Ontario Estate Administration Tax) is a fee paid to the government when your executor applies to the court to have your executor (Estate Trustee) properly appointed when you pass away.
My 17 year old child is very mature, can she be my executor?
Your executor must be a legal adult, that is, someone over the age of majority, in Ontario that is 19.
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About Maureen Tabuchi
Maureen isn’t your typical lawyer. She’s more like a friend who just "happens to be a lawyer". She thrives on helping people with their legal challenges and it’s important to her that you and your family are protected by the law, whether it’s an estate plan, a real estate purchase or a friendly divorce.
She left her fast paced job as a Mergers & Acquisitions Lawyer with E&W on Bay Street as she felt she just wasn’t fulfilling her true purpose in life. She started her own practice that allowed her to give back to her community, helping real people with real goals and dreams.
With both a law and tax degree, Maureen is more than capable of ensuring your estate plan is sound and as someone who considers herself a “friend to all” her heart ensures she’s serving you from a place of authenticity and compassion.
Maureen truly is one of a kind. She and her firm can have your estate plan completed easily and quickly. You know you need a will, so let Maureen and her team help you get this done.