Yes, it is important to have separate Wills as married couple.

Power of Attorney is used to ensure that gov’t will not take over your financial and medical decisions. In Ontario the default for not having a power of attorney for either property or personal care is that the government steps in, and assigns someone to make all the decisions for you. This person has the final authority.

A codicil is a testamentary document that makes an addendum, amendment, or other minor change to your last Will and Testament.   

When a person passes away intestate, or without a will, the first thing that needs to be addressed is what is included in the estate.  Once everything that has been determined to be in an estate is “marshalled”, the distribution of the estate is determined by the Succession Law Reform Act.  This process is determined by the legislature or the courts and NOT by the wishes of the deceased.   

If you are married the act states, the first $200,000 of the estate is inherited by your married spouse.  If you are common law, the common law spouse would not inherit any part of the estate. 

If you are married with one child after the first $200,000 is given to the married spouse, the remainder of the estate will be split between your spouse and your child. 

If you are married with more than one child after the first $200,000 is given to the married spouse, 1/3 of the assets will be given to your spouse, and the remaining 2/3 will be divided amongst your children. 

If you are not married with children, the act states that the entirety of the estate will be divided equally among your children. 

If you have no spouse and no children, the act states that the entirety of the estate will be passed to your parents. If no parents are living, then the entirety of the estate will be given to your siblings. 

Save those you care about most the time, stress, and financial burden of passing intestate by creating a proper will today. 

No, a joint bank account cannot be substituted for a Will or POA.  A joint bank account can make a Wills process more complex.  

A testator is the title give to the person creating the Will. 

An executor is a person appointed by the testator, who upon the testator’s passing, will manage any wishes and affairs of the testator as instructed in the Will.  The executor of the Will is an important job, and a responsible person should be selected. 

A guardian is a person that is appointed by the testator, who will take care of the minor children of the testator in the event of the Testator’s death. 

Yes, you can and should appoint an alternate executor in your Will, in the case that your primary executor does not want to be the executor, or is unable to be the executor, such as if the primary executor passes away. 

An affidavit of execution is a sworn document that provides security to your Will.  This document is sworn by a witness at the time the Will is signed by the Testator.  This provides Validity to the signing process of the Will (referred to as “proof in solemn form”) and protects the estate of the testator in probate. 

Yes, a proper Will should have an affidavit of execution as it is required for probate. 

Probate is the court process for the approval and the certification of a Will.  During this process, an executor will also be appointed to manage the assets of the estate. 

No, your Will can be simple, or complex based on your finances, family situation, assets outside of Ontario, or if you own shares in a private company, etc.  

A Power of Attorney (POA) is a person, granted permission through a legal document, who has the right to make decisions on your behalf should you become mentally or physically incapacitated.  Ideally this is a person you trust to make these difficult decisions.  If you do not have a POA, the alternative is a court appointed guardian, which can be time consuming and costly. 

Everyone over the age of 18 in Ontario, who is mentally capable of granting a POA should do so.  The alternative to not having a POA will incur significant added cost to you and your loved ones and may make decisions contrary to one your loved ones would make. 

A POA for personal care is a person granted permission through a POA to decide about your healthcare, aspects of your personal life, and housing, should something unexpected happen to you rendering you mentally incapacitated.   

A POA for property is a person granted permission through a POA to handle your finances and property should you become mentally or physically incapacitated. 

Yes, under emergency legislation now in place (and likely to stay in place) Video Signatures are valid on Wills and POA’s in Ontario if they meet a set of standards.  Two witnesses are required, one of which must be a licensee of the Law Society of Ontario, signatures must be original signatures and not digital signatures, and the witnesses must be able to see and hear the attendees of the video conference. 

The cost of a Will can seem daunting, but the reality is — the cost of passing without a Will far exceeds the cost of a Will.  

Court Costs and Fees  

Even if you have a simple and small estate, your fees and court costs to be paid for administration will likely be higher than if you had a probated Will in the first place.   

Income Taxes  

Without a Will you do not have a tax plan in place, which may cause your income taxes to increase.  With a tax planned Estate in your Will, it is possible to save thousands of dollars of taxes.  

Legal Fees 

Estates without a Will are more time consuming than Estates with a Will, thus more costly.    

Real Estate 

If you own multiple properties in different provinces or countries, the location will determine how the property will be dealt with under the law.  This means if you do not have a Will and you have a vacation home in Hawaii and a home in Ontario, there will be 2 estates to be administered, which is subject to 2x the cost of 1 estate. 

If you have a Will before you get married, the Will is automatically terminated upon marriage.  You must create a new Will when you get married unless you referred to your upcoming marriage and documented in your Will your intent to keep the prior Will valid after said marriage. 

 Regardless of how long you have been separated, your separated partner (if you named your separated partner as an executor or beneficiary) will inherit.  It is important to draft a new proper Will if this is not your intent.  

In this case, your Will is not automatically invalidated.  Unless your Will specifically addresses the divorce, your Will shall read as if your ex-partner has passed before you have.  Your ex- spouse will therefore not inherit* as a beneficiary and cannot be named executor. * The exception to this is beneficiary appointments on RRSP’s, TFSA’s, RRIF’s, pensions or insurance.  These will need to be changed explicitly in a new Will or they can be corrected at your local bank or financial institution.   The safest action to protect your assets and wishes is to create a new Will and revoke prior Wills after divorce.  

Under the Family Law Act a common law spouse does not have the same rights as a married spouse and are not required to receive anything if you do not have a Will.  If you do wish to have your common law spouse as an executor or beneficiary, you must create a Will.  

This is the original document of your last Will and testament, this original is what must be presented in Court during probate.   

Option 1 

 The first is to leave it with us at our Law offices.  For no fee we can securely store it in a fireproof cabinet.  If you choose this option make sure your loved ones know the name and location of our offices, for retrieval of the original Will should something unexpected happen.  

Option 2 

For a one-time fee you can deposit it with the courts of Ontario. 

Option 3 

Ensure it’s safe keeping yourself. You may choose to store it in a safe at your home, a safety deposit box in your bank or financial institution, or another safe place of your choosing.  

Regardless of where you choose to store your original Will, it is important to make sure the executor or a beneficiary, knows the location of the Will.  

Revocation of a Will is the action of rendering it invalid. 

If the person who writes the Will, the testator, destroys the Will it is no longer valid and considered revoked.  

If an original Will is lost, it is considered revoked, as the testator is assumed to have destroyed the Original Will.  A lost Will is a big hassle to your loved ones and can be incredibly complex to deal with.  Under some circumstances a copy of a Will may receive probate, but it is exceedingly difficult, expensive, and may not be possible.  

In most cases, the testator should revoke prior Wills when a new one is created.  Speak with a lawyer today if you have any questions regarding this process.  

Yes, your Will and estate plan should mention your dependents, and any obligations you may have to support them.  If not, under Ontario law, someone that was dependent on the testator can make a claim for support from the estate.  This claim can be made on top of what is to be inherited by the dependent.  

There are three ways a homeowner can own a home in Ontario; as a sole owner, as a joint tenant, and as tenants-in-common.  

A sole owner of a home is when there is only one person on the title of the home and has the sole rights to the home. 

Most legally married spouses own a home as joint tenants, which means that they both hold ownership to the home.  

Tenants in common is the third way a person can have ownership to a home in Ontario.  This occurs when a property is held by two or more people, or a corporation, and each person holds a percentage share in the property.  This can also be used to sever assets between a separated couple.  

If you are a sole owner, 100% of the value of your home will become a part of your estate and dealt with as outlined in your Will.   If you are a joint owner your home passes to the surviving joint owner by “right of survivorship.”  If you are a tenant in common your estate is entitled to the percentage of the ownership value that you have in the home.