Wills and Estates Lawyer

Wills and Estates

Planning for your family’s future is extremely important, and if you’re looking for a Wills and Estates lawyer, you have come to the right place. We will sit down with you and assess your situation and you will receive personalized advice regarding the best course of action for your individual needs. From Wills, Powers of Attorney to trusts and asset protection planning, our lawyers provide advice that helps you minimize tax burdens and organize your affairs.

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Our Wills and Estates Services

Oakville Real Estate Lawyers - Monica Beffa

Life is more complicated today with blended families, common-law relationships, business interests, investments, charitable giving, dependents with disabilities, and recreational properties.
We can help you with the following legal services:

Will drafting

Power Of Attorney and Living Wills

Estate Planning

Probate

Our team believes that investing time and effort into creating a well-prepared estate plan and the ongoing monitoring it, will give you peace of mind. And everyone deserves peace of mind, regardless of age or marital status.

Wills and Power of Attorney documents

A Will, is a legal document that outlines how your property and personal assets will be distributed upon your death. It specifies your beneficiaries and appoints an executor to manage your estate. While you can create your own Will, it is advisable to seek the help of a lawyer to ensure it meets all legal requirements and accurately reflects your wishes. If you die without a Will, the law will govern the distribution of your property, which may not align with your personal wishes. Your Will does not take effect until you die and does not govern health care decisions while you are alive. You can change or revoke your Will by adding a Codicil or executing a new Will.

A Power of Attorney is a legal document that allows you to appoint someone to make decisions on your behalf if you become incapable of doing so yourself. There are two main types of Power of Attorney: Power of Attorney for Property and Power of Attorney for Personal Care. The former gives your appointed attorney the authority to manage your assets, while the latter allows them to make health-related decisions on your behalf. It is crucial to choose a trustworthy individual as your attorney, as they will have significant control over your affairs in the event of your incapacity.

Probate

Probate is the legal process that an estate executor undergoes to initiate the distribution of a deceased person’s estate. Through probate, the court formally approves the deceased’s Will and grants authority to the executor named in the Will to handle the estate. The executor is responsible for managing the deceased’s property and affairs, ensuring that the conditions in the Will are carried out and the assets are transferred to the beneficiaries. If the deceased died without a Will or the named executor cannot perform their duties, the court may appoint someone to act as the executor.

Probate is typically necessary when the estate contains real property, the person died without a Will, or the bank requires proof of a beneficiary’s right to their inheritance before releasing funds. However, there are legal ways to avoid probate or reduce the assets that attract probate, such as joint tenancies, trusts, and designated beneficiaries. It is important to seek legal advice to ensure these methods are properly executed.

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Wills, Estates and Probate FAQ

What is a Will?

A Will, also called the Last Will and Testament, is a document that outlines how your property and personal assets will be distributed upon your death. A Will sets out your beneficiaries (the individuals who will inherit your assets), an executor or trustee (the individual who will be in charge of managing your estate after you pass), and it can outline any other wishes you may have.

Can I write my own Will?

The short answer is yes, you can create your own Will without a lawyer. As long you are at least 18 years old and have mental capacity when you create the Will, and the Will is physically signed in wet ink by you in the presence of two valid witnesses who also sign the Will, it will be considered a validly created Will.
You may also create a special Will without witnesses called the Holographic Will. To do so properly, the entire Will must be handwritten by you. The Holographic Will cannot be digitally created, even partially.
Making your own Will may have its disadvantages as it is sometimes a complicated process for those who are not familiar with legal terminology. Additionally, if you make a mistake in your Will, your estate may not be distributed in the way you wanted which may lead to family members being disappointed and beneficiaries taking your estate to court.
As a result, it is a smart idea to create a Will with the help of a lawyer. A lawyer who is experienced in the creation of Wills knows the requirements of a valid Will and can ensure even the most complex wishes are properly integrated into the document.

What Happens If You Die Without a Will?

If you pass without having created a Will, you will be considered to have died intestate and the law will govern how and to whom your property is distributed. In Ontario, the Succession Law Reform Act sets out rules that help determine who should be your executor and your beneficiaries, how to distribute your assets, and who should become the guardian of any minor children.
Generally, the law states that your estate will be distributed to your closest family starting with your spouse, then children, grandchildren, parents, and so forth to your next of kin.
It is important to note that common-law partners and step-children who have not been adopted have no right to your property in the case you die intestate.
Unfortunately, what the law states is often not what you would have wanted. Therefore, if you would like to have control over how your property will be distributed upon your death, it is best to execute a Will.

What Does My Will NOT Do?

Your Will does not take effect the day it is signed. Instead, it becomes effective the moment your die. While you are alive, your Will does not give your executor the authority to manage your property or make any decisions regarding your estate, even if you become mentally incapacitated. Your beneficiaries also do not have the right to your property and their inheritance before you die. Furthermore, a Will does not govern any health care decisions while you are alive.
Other documents are required to allow someone to make decisions while you are alive. A Power of Attorney for Property and a Power of Attorney for Personal Care will give the person you named as your attorney the power to manage your assets and make health-related decisions on your behalf if you become incapable of doing so yourself.

How Do I Change or Revoke My Will?

You may change an existing Will by adding a Codicil to it. A Codicil is a special type of document that supplements, modifies, or revokes a Will or part of the Will.
If you want to revoke a Will, this may be done so in writing by executing a new Will with a statement saying that this new Will is your latest and primary Will, and it revokes all previous Wills and Codicils.
Another way to fully revoke a Will is to physically destroy the original copy. This should be done by shredding the document or burning it.
According to law, a Will is also generally cancelled when the person who made the Will gets married or remarried. However, simply getting a divorce does not revoke the Will. Instead, after divorce the Will is read as though your ex-partner has passed before you.

What Happens If I Lose My Will?

Losing an original copy of your Will can be problematic. If you die and your executor cannot find the original copy of your Will, the court will assume that you have physically destroyed and revoked it. Even if you have a copy of your Will, it will not be sufficient.
The duty of proving that you have not revoked or destroyed your Will and proving the contents of your Will falls to your beneficiaries.
It is essential that you store your original Will in a safe place, such as in a safety deposit box or at a lawyer’s office, and ensure your executor will have access to it when you die.

How Long Does My Will Stay Valid?

A Will is valid from the moment it is signed, and it does not expire. Even if the Will was executed 30 years prior to death, it will still be read as a valid document that will govern the distribution of your property.
However, sometimes as life circumstances change, so may your wishes. Therefore, it is a good practice to re-read your Will every few years to make sure it still meets your hopes and expectations on how your property will be dealt with.

Can I Leave Instructions In My Will On My Funeral Arrangement?

Although you may always outline how you would prefer to be treated after death in your Will, these requests are not legally binding. You should discuss special wishes with your executor as they will be the individual ultimately making the decision regarding this process.
The Will may also not be read until after a funeral has occurred, so if you have a specific preference for funeral arrangements that are not known to your family and executor, your wishes may not be fulfilled. Communicating your requests to a trustworthy executor is the best way to ensure your arrangements are carried out.

Do I Have to Leave My Assets to My Family Members?

Typically, you can leave your property to anyone you choose, even if it is to a stranger or a charity. Your Will may leave out your spouse, children, and other relatives.
However, if you decide to not include your close relatives as your beneficiaries, you may open your estate to the possibility of getting sued in court.
Additionally, your spouse has the option of electing to go against the provisions in your Will and instead may elect to receive part of your estate. Your spouse and any dependents you leave behind, such as your children, may also be entitled to receive support payments from your estate.
Due to the high chance of someone taking your estate to court, talk to your lawyer if you do not wish to include your close family in your Will. A lawyer can help minimize any risks of future litigation.

What Should I Expect When I Hire a Lawyer to Prepare My Will?

Generally, when you first meet with a lawyer, the lawyer will ask you to provide a piece of identification and to fill out an intake form with your information and any family details, types of assets you have, whom you want to name your beneficiary and executor, etc.
Do not be apprehensive if your lawyer asks to speak to you alone. They are acting in your best interests and are simply trying to understand if you are making your wishes without influence by family or friends, and that you are mentally competent to legally make a Will.
After meeting with the lawyer, the lawyer will draft a copy of your Will and ask you to review it. If it outlines all your requests, you will be called in for an appointment to physically sign the Will in ink. While Wills may be physically signed over video conference, Wills signed digitally are not valid in Ontario.
Once the Will is signed by yourself, your witnesses, and your lawyer, you will have to store the Will in a safe place or ask the lawyer to keep it in their office.

What is Probate?

Probate is the process that an estate executor needs to undergo to initiate the distribution of an estate of a deceased. Through probate, the court can formally approve the deceased’s Will and grant authority to the executor named in the Will to handle the deceased’s estate. The legal name for probate in Ontario is the Certificate of Appointment of Estate Trustee.

Who is an Executor?

An executor for an estate, also called an estate trustee, is the person chosen by the deceased to manage the deceased’s property and affairs after they die. The executor is responsible for carrying out the conditions in the deceased’s Will and looking after the deceased’s assets until all property can be transferred to the beneficiaries as their inheritance. In Ontario, the executor is the only person who is given legal authority to administer the estate.
If the deceased died without a Will or the executor named in the Will cannot perform their duties, the estate beneficiaries may nominate another person to act as the executor. Alternatively, the court may appoint someone to be the estate’s executor. There may also be more than one executor for an estate.

Who Can Apply for Probate?

The person who is named as the executor of the estate is usually the person who has primary authority to apply for the Certificate of Appointment of Estate Trustee. If the named executor renounces their position, the alternative estate executor named in the Will may apply.
When the deceased died without a Will, the court may appoint an executor of their choice. Generally, the spouse or another immediate family member will be appointed as the executor. If the person declines to act as the executor, the person with the next best right may apply.
In addition, the person who seeks to be appointed as the executor when there is no Will must reside in Ontario and is also required to post a security bond to protect the value of the estate.

When Do I Need To Probate?

The assets in the estate will determine whether you need to go through the probate process or not. Most estates require probate.
Typically, probate is necessary when the person died without a Will or the Will is invalid, there is no executor named in the Will, the estate contains real property that does not pass by survivorship, or when the bank requires proof of a beneficiary’s right to their inheritance before releasing funds.
There are some assets that do not require to be probated. These include RRSPs, TFSAs, life insurance policies, assets owned by joint tenancy, real estate located outside of Ontario, joint bank accounts, and CPP death benefits.
If an estate contains both types of assets, the entire estate must go through probate.

Can I Avoid Probate?

There are legal ways to avoid probate altogether or at least reduce the assets that will attract probate. Some ways include joint tenancies, succession plans for corporations, gifts during one’s lifetime, designated beneficiaries, trusts, and multiple Wills.
These methods allow for assets to be passed to beneficiaries either prior to death or directly to the surviving beneficiary. This way, assets can pass between generations without the need to pay additional tax.
It is highly important to note that these methods should not be used before obtaining legal advice. Talk to a lawyer to ensure that you are legally exempt from additional estate administration tax as the consequences of the improper creation and execution of such financial structures may be disastrous.

Do I Have To Pay The Estate Administration Tax?

Whether you are required to pay the Estate Administration Tax (“EAT”) depends on the value of the estate. In Ontario, if the estate assets are valued under $50,000, no tax needs to be paid. However, if the value is over $50,000, a 1.5% tax is paid on any value above the initial $50,000.
The value of the estate is calculated by adding the value of all the deceased’s assets including bank accounts, investments, personal property such as jewellery and furniture, real estate, and vehicles. Assets that are exempt from probate are not required to be included in the calculation unless there is no designated beneficiary for them.

Do I Need The Original Will?

Yes, if you are applying for probate in the province of Ontario you are required to provide the original Will. A copy of the Will is not sufficient. The original Will must be signed by the deceased in the presence of two valid witnesses, signed by the witnesses, and must be accompanied by Affidavits of Execution. Even though it is now possible to sign the Will in the presence of witnesses and a lawyer via video conference, Will signed digitally will not be valid.
If the original Will is not found, the deceased’s assets will be distributed based on the laws of intestacy. These laws assume the deceased died without a Will. In this case, who is entitled to the inheritance will be determined by the Ontario Succession Law Reform Act which states that the beneficiaries will be the closest next-of-kin of the deceased.

I am the Executor of the Estate. Where Should I Look For the Original Will?

If you are the executor of the estate and the deceased did not notify you about the whereabouts of the original Will, you can begin by asking close family members of the deceased if they know where the Will is located. If the deceased’s relatives do not know its location, checking the bank may be a good idea as Wills are often placed in the bank’s safety deposit boxes for safekeeping.
Wills may also be kept in the possession of the deceased’s lawyer. You may contact the lawyer to see if they are in possession of the original Will or if they can attempt to locate the Will in a court record or Will registry.
Furthermore, many people keep their Wills within the walls of their home. Wills can often be located in a home safe or in a desk drawer.
Unfortunately, not all people create Wills and some Wills become lost over time. If this is the case, the deceased’s estate will be distributed based on the laws of intestacy.

How Long Will It Take to Administer the Estate?

Due to the difference in complexities of estates, the length of time it would take to fully administer the estate will vary. The more complex the estate, the longer it may take to gather and file all the necessary documents for the probate application.
First, the probate documents will have to be collected and filed with the court, and the value of the estate must be determined. After the application has been filed, the Court will take approximately 15 days to process the probate application. If there is missing documentation or incomplete forms, you must resubmit the correct paperwork to the court again.
Once the court grants probate, it generally takes an executor at least a few months to a year to settle a regular estate. If there are many assets or beneficiaries, or if there is a dispute regarding the distribution of property, the process will take significantly longer.

Do I Need A Lawyer to Apply for Probate?

You are legally allowed to prepare all probate documents yourself and submit them to the court without a lawyer.
However, the probate process is extremely difficult and requires the preparation and filing of many documents and forms. These tasks require thorough knowledge of the probate process as well as the understanding of legal terminology that lawyers spend their entire professional lives learning.
A lawyer can ensure that you have collected the correct documents, filed the proper forms, and did not miss any deadlines. For complex estates, a lawyer will also help save you time and money as the lawyer will be able to ensure that correct assets are probates and that you are not paying more estate administration tax than required. As such, hiring a lawyer to give you advice and help you through the probate process is highly beneficial.