WILLS AND ESTATE PLANNING -ONTARIO

 

WILLS AND ESTATE PLANNING -ONTARIO

Wills and Estate Law- Ontario Estate Planning Lawyers, Ontario Wills Lawyers

Estate Planning and Wills - Ontario

Oftentimes when a family member passes away, disputes can arise due to the passing of their estate. There are also instances where one member of the family would wish to challenge or dispute the contents of a will made by the family member that passed away. When it comes to an estate dispute, making a will, inquiring into the validity of a power of attorney, and managing an estate, it is important to have our Ontario Estate lawyers representing your rights and best interests. Contact us for a free consultation.

​

We can help with probate of the will in relation to an estate, small estates, appointment or removal of a trustee, and instances where there is no will. We can also assist with estate planning and will writing in Ontario. Call us for a free consultation.

 

Small Estates-Waiving Probate

When it comes to small estates in Ontario, some estates include very small amounts of property. For example, the deceased may only have one vehicle, oftentimes financed, rather than owned outright, and a small bank balance in a few bank accounts.

 

Usually the amount of the deceased family member's bank balance is under $50,000. In some instances, especially if the amount is under $50,000 CAD, the bank or the credit union will release the funds in the deceased member of the family’s bank account to the beneficiary without probate.

​

There are several factors to consider in waiving probate. Whether probate is waived is in the discretion of the financial institution, subject to their own internal policies and procedures. There must be clarity regarding the identity of the beneficiaries, as well as the portion of the estate that they are entitled to. Additionally, all beneficiaries must be in agreement, but the funds can be distributed without probate, and in some instances, a bond of indemnity may have to be signed.

 

In other situations, for probate applications involving estates valued at $150,000 or under, there are special rules that streamline certain aspects of the probate application.

​

The removal of the requirement that the application must be sworn as well as restricting the need to post a bond in certain circumstances, are some ways that estates under $150,000 are treated slightly differently. Please call us today to discuss further about the various legal entitlements and implications regarding your deceased loved one’s will and estate in Ontario.

​

Common Issues

One common issue that comes up is finding the last and most current will of the deceased family member, because whether or not the deceased family member actually makes a will would impact which family members inherit what portions of the estate. Unfortunately, many deceased family members simply do not have the foresight to make a will. Or, if they do at some point make a will, they do not tell anyone or update anyone about where the will actually is. This is a problem because in Ontario, there is no centralized registry to search for a will. So in order to find the will, the easiest way is to contact the Ontario estate lawyer, the person the deceased family member engaged with for will writing.

 

The deceased family member might have engaged an Ontario estate lawyer for the will and so contacting their Ontario estate lawyer would be the first step. Then, one can search through the deceased family member's papers, filing boxes, shelves and cabinets, any safety deposit boxes or safes, and inquire with the Ontario estates registry at the local Ontario Courthouse. There are also new options coming up, such as consulting with local, Ontario advertising agencies and local Ontario newspapers (news and media outlets). There is also an online will registry called noticeconnect.com that could help in some situations.

 

If after having made reasonable efforts to locate the deceased family member's will, if the will is still not found, you can provide the Ontario Court with the  evidence of the efforts you have made to find the will. You will have to proceed on the basis that the deceased family member made no will. This is called dying intestate.

 

Another issue one can come across is finding an older will of the deceased family member; this version of the will may have already been revoked by the deceased family member. If there are issues such as that with the will, you can seek to have the will probated.

 

A separate issue that comes up is that only one copy of the deceased family member's will is located, but not the original copy of the will. Then, the Applicant has the onus to prove that the testator signed the original copy of the will and did not intentionally destroy the original copy of the will. This is because if one destroys the original copy of the will, one is considered to have revoked that will.

 

This is just a presumption that a person who destroys their will intended to revoke it. It can be rebutted. For example, if the will was destroyed accidentally.

 

Probate-Copy of a Will

The probate of a copy of will rather than the original is a far more complicated and expensive process. Contact us today. We can represent your rights and interests in the Ontario Superior Court of Justice to make sure you are getting your full entitlement to the estate.  

 

We will inform you about the process and the timelines, and provide you with guidance regarding probate applications. No matter how simple or complex the case is, we can help. Given our experience, our fees are very reasonable and will most likely save you money even if you try to do it yourself. Don't stress or delay regarding probate, let us handle it for you. Simply tell us the details, accept our retainer agreement, and pay the first installment. We will file your application with all the right attachments, enclosures, filing fees, and other payments with the appropriate Ontario Court in a prompt and timely manner. We will keep you appraised about the probate application and make sure that your certificate of appointment of estate trustee is issued by an Ontario Court as soon as practical.

​

Common Questions-Probating a Will and/or Estate

Many people ask what is probate? What does that process entail and what should one expect? Probate is the procedure that the Court follows to provide a formal approval of a will by an Ontario Court, and to recognize the last will of the deceased, as well as validity of the will. Probate is also the process for confirming the appointment of the estate trustee, and this is done by an Ontario Court, in situations where a will was made as well as in situations where a will was not made. The effect of probate is a legal right of the estate trustee to act on behalf of the deceased. The Court focuses on whether or not the will is, in fact the last will of the deceased, whether there is any reason that the will should not be formally recognized, whether the executor named in the will is the right and qualified person who should be administering the estate. In a situation where there is no will, the identity of the estate trustee would be a live issue. Probate usually is required when there are a lot of assets in the estate or if the choice of the executor or certain actions or omissions of the executor is contested and challenged by a beneficiary. If there is a dispute about who should be the estate trustee, if the trustee is not behaving fairly, which gives rise to a dispute, or if there is a beneficiary that cannot consent for various reasons, then the estate should be probated.

 

Estate Trustee and the Estate

With regards to estates, although the estate trustee would not be liable automatically for the debts of the deceased, there are situations that can lead to an estate trustee being personally liable, and sometimes unknowingly. The estate trustee would be personally liable for debts the estate trustee incurred such as funeral and legal fees. The estate trustee may also be liable for the fact that they have an obligation to ensure that assets of the estate are properly distributed, including to creditors. This means that the creditors should be paid in full before any distribution is done to any of the beneficiaries.

​

If a potential estate trustee is of the view that this estate is insolvent, they should investigate but not take any action in relation to the estate, lest they incur personal liability with regards to improperly distributing estate assets. Debts are common in an estate and the debts need to be paid off from the estate assets before any distribution can or should  be made to the beneficiaries. If the debt of the estate is contested, as in for example, if there is an Ontario Court proceeding regarding the debt, the trustee should retain our legal services to advise on those issues.

​

If the debts exceed the assets and the estate is in fact insolvent, it is better to seek the advice of a licensed insolvency practitioner who can administer that estate. A very key point is that the creditors should be paid fully, and it would be problematic if some creditors are paid while others are not paid.

 

It is possible to transfer certain assets without paying the creditors of the estate, and you can call us to discuss the procedure for this, and if the asset does in fact qualify for this transfer. Generally, it would be a very minor asset that does not have much value in monetary terms.

​

Will Writing

The best thing you can do to safeguard your future is to have a will. The biggest advantage of having a will is that it makes probate easier. Probate of an estate where there is no will is problematic because there is no named executor who can apply to act as an estate trustee presumptively. The Ontario Court is not bound when there is no named executor to appoint someone in particular as an estate trustee. The Ontario Court will choose the most suitable estate trustee based on what is in the best interests of the beneficiaries.

 

Generally, the estate trustee for an intestacy has to be resident in Ontario or a third-party must be appointed to act. It is a very rare occasion that a certificate of appointment of estate trustee without a will would be granted to a non-resident of Ontario.

​

Legal Proceedings-Against an Executor, Administrator or a Trustee of a Person's Estate

Rule 9 of the Rules of Civil Procedure set out the procedure regarding bringing a proceeding against an executor, administrator or a trustee of a person's estate. Further to this, executors, trustees and administrators of an estate may bring proceedings on behalf of the estate. The estate beneficiaries do not have to be added as parties except in certain situations.

 

There are limitations as set out in Section 38, clause 3 of the Trustee Act for some types of actions to be brought on behalf of an estate or an action against an estate. If an executive, administrator, or trustee does not consent to be joined as a plaintiff or Applicant, they will be deemed to be a Respondent or a Defendant in the legal proceeding. Other persons may also be added such as beneficiaries, creditors, or any other persons having an interest in the proceeding as parties. The reason for this is so that the Ontario Court's decision is as thorough and final as possible, with the full factual record and so that it won't be challenged at a future date, on the basis that a party was not added when they should have been added.

​

In situations where an estate has no executor, or no administrator, a motion can be brought and the Ontario Court may appoint a litigation administrator. The role of the litigation administrator is to represent the estate in an Ontario Court proceeding. The general rule is that a litigation administrator would not have to personally pay or receive costs to the estate, as the Ontario Court's order making the litigation administrator a party, will not affect the personal interests of that administrator. An exception would be if the Ontario Court orders that specifically.

​

Remedial Provisions

There are a number of remedial provisions set out in Rule 9.03. The Ontario Court can fix procedural defects, and the Ontario Court can allow an action started against a person before a will has been probated, to be continued after that will has been probated. Additionally, the Ontario Court can amend the title of the proceeding and name a correct party when the wrong party was inadvertently named. Moreover, the Ontario Court can also impose any terms that it considers just, so that the action or application can proceed and be adjudicated on its merits.

 

Call us today. Our Estate and Wills lawyers can help with preparing or revoking your Ontario wills, estate planning and estates litigation needs, no matter how complex the estate. No matter how young or old you are, it is always a good idea for you and your family to have a valid will.