Wills and Estates FAQ

If you have any questions, don’t hesitate to email us at info@delaneys.ca or call us at (613) 233-7000.

What Happens If I Die Without a Will? Upon one’s death, if no will has been properly written then all of one’s assets will necessarily find themselves at the mercy of the rules of intestacy. The rules of intestacy are a type of default rule which apply to the distribution of the assets of those who die without a Will. These rules offer very little discretion or flexibility. In order to avoid the application of these rules to your assets, one must ensure that they leave behind a valid written Will.

What is a Will? If properly executed, a Will is simply a written legal declaration by an individual (known as the testator) through which that individual’s wishes regarding the distribution of their assets upon their death are articulated.

What is an Estate? When the term “estate” is used in situations involving a Will, it is generally understood that the term means all of a particular persons assets including legal rights, interests and entitlements to property minus all their liabilities.

Does Everyone Have an Estate? Essentially, as long as you own something, whether it be a bank account or something as simple as a piece of furniture, then an estate is created upon your death.

Do I Need A Will if My Estate is Small? If you die without a Will, then the rules of intestacy will apply and will determine who will get your assets and how they will be distributed amongst those people. So even if your estate is minute, if you care at all how your assets will be dealt with, then you must have a written Will.

What Makes a Valid Will? The requirements that must be met for a Will to be valid are fairly straightforward. A Will can contain virtually any asset belonging to the testator and these assets may be distributed to any person named in the Will. All that is legally needed in order to meet the validity requirements is that the Will be in writing and that it be dated and signed in the presence of two witnesses. If those requirements are fulfilled, then the Will is legally valid.

Is a Will Confidential? A Will is a private document, however, this may be altered upon one’s death. Where a Will is contested or where probate is obtained, then the Will becomes part of the Court system and inevitably becomes public.

What is Probate? Essentially, probate is a court process that begins after the testator passes. Throughout the probate process, the transfer of the testator’s property is sorted out. The court will verify whether or not the Will is valid and it will also determine whether or not the executors name in the Will actually have legal authority to act. Court and lawyer fees are usually covered by the testator’s estate.

Can a Will be Corrected? Yes and no. You cannot simply cross out or otherwise alter the original Will. In order to bring changes to a Will you must use a separate document called a codicil, which must also be signed and witnessed like the original Will. If major changes are required, it may be more prudent to make an entirely new Will.

What is a Power of Attorney (POA)? A Power of Attorney is a type of legal documentation that essentially gives one or more named persons the legal authority to act on the testator’s behalf. When a testator appoints someone to make decisions for them regarding their finances or their property this is referred to as a Continuing Power of Authority for Property.

Is Giving Someone Else the Power of Attorney Necessary? Giving a Power of Attorney or a Continuing Power or Attorney for Property is in no way mandatory and many people never actually sign one. The risk in not assigning one however is that upon your death, if no specific person is given the POA then the government will be able to simply appoint whom ever they see fit to make certain decisions for you. The safest bet is to appoint someone you feel you can trust to carry out your wishes.

How Will My Estate By Distributed? If you have a valid Will, then upon your death, the estate will be distributed pursuant to the directions left in your Will. On the other hand, if a person passes without a valid Will (intestate), the Ontario Rules of Intestacy will come into play and dictate how assets will be distributed. The Rules of Intestacy state that where a person dies intestate their estate will be distributed as follows: – the first 200,000$ to a living spouse – anything over and above the first 200,00$ to the living spouse and children If there is no living spouse, then the estate will go first to the children of the deceased. If there are no children, then the estate will go to the parents of the deceased. If the testator’s parents are not living, then the estate goes to the deceased’s siblings and their children. This is only to give a general idea of how an intestate person’s estate will be distributed. For a more specific account, reference should be made to the Ontario Succession Law Reform Act R.S.O. 1990, CHAPTER S. 26.

What is an Estate Trustee? The Estate Trustee is often referred to as the Executor or the Will or estate. The Estate Trustee is a person or persons named by the testator in their Will who is appointed to see that the testator’s final wishes are duly executed. As an Estate Trustee, you will be responsible for both the administration and distribution of the property of the deceased testator. In addition, you will be legally accountable to both creditors and beneficiaries of the estate.

Do I Need to Get Someone’s Permission Before I Appoint Them as My Estate Trustee? Getting your Estate Trustee to-be’s permission to appoint them as such is not required but is strongly recommended. Fulfilling one’s duties and obligations as an Estate Trustee can often take up to a year and can actually be quite time consuming. This being so, it would be beneficial to both parties if the potential Estate Trustee was told in advance so that he may either have an opportunity to refuse the position or alternatively, prepare for the task.

Wills and estates are important – don’t delay, contact the firm today.