If you own property of any kind (whether
personal property or real estate), you need a will to set out your wishes
with respect to how such property should be distributed upon death. A
will is a key legal document ensuring your wishes are carried out. Without
a will, your estate (upon death) may be in limbo until either the government
or a person (not necessarily someone you would choose) is appointed as
estate trustee to look after your assets. This may result in delays, further
expenses and/or other complications. A Will can also set out your wishes
for your children/dependants instead of leaving that decision solely to
the court's discretion.
WILL vs. ESTATE PLANNING:
When wills are being done in our law office, we focus strictly on methods
of distribution of whatever assets you own at the time of death (rather
than using estate planning methods for tax reduction, for which you should
consult an estate planning specialist). No one can predict the future
regarding whether one might end up (at the time of death) with $1Million
or $1 in net assets. An example of a typical formula for distribution
of assets by a husband and wife (married for the first time) with 2 children
would be that each spouse leaves everything to the other spouse, but if
both die (for example, in a common accident), all assets are left to children
in equal shares to be held in trust for such children until they reach
an age specified by you (we normally recommend age 21). Until such age,
the trustee(s) (named by you) can use funds for the education, health
and welfare of children.
Note : Of course, you can develop
your own formula for distribution of assets since the above-mentioned
formula is only an example. Wills can be changed any time (before death,
of course).
PROTECTION AT A MINIMAL COST:
When you are purchasing real estate, you should consider preparing a will.
It is normal for people to delay in preparing a will; however, the extra
cost (charged by our law offices) of $75.00 per person (if a couple) or
$88.00 (if single) is small in comparison to the additional costs that can
be incurred in administering an estate where there is no will. When doing a will, it is usual that one should also sign a Power of Attorney to deal with a mental or physical incapacity in case of a serious illness or accident, in which case, we charge an additional legal fee of $25 for such Power of Attorney. For further
information as to instructions and cost, please phone our office at (416)222-1882.
WILL NOTES (beware!)
- A will that has been totally handwritten and signed by the
deceased (no typed or pre-printed sections or paragraphs) is
valid in Ontario.
- A will done by way of a video is NOT valid in Ontario.
- A surviving spouse (if there is no will) in Ontario is entitled to
the first $200,000.00 of estate assets and any amount over $200,000.00
is shared equally between surviving spouse and surviving children.
- A common law spouse (including same sex partner) does not have the
same rights to share in the assets of the deceased (where there was
no will) as a married spouse (under note 3 above). To make sure that
a common law spouse (or unmarried same sex partner) receives property
after death, a will must exist.
- A power of attorney (given prior to death) is useless garbage after
death since the power of attorney automatically terminates upon death.
A will only becomes effective upon death, at which time an existing
will replaces any power of attorney.
- Naming a spouse or children as a beneficiary on an insurance policy
or RRSP can save probate costs and taxes.
- Joint ownership of property to avoid probate costs is not always advisable
if one loses control over dealing with the asset during one's lifetime.
Current probate costs are only ½ of 1% on the first $50,000.00 of the
estate and 1.5% on the balance ($1,500.00 probate cost for each $100,000.00
of estate assets over the first $50,000.00).
- While a divorce or separation will not affect the validity of a will,
a marriage (after a will was made) will invalidate any will made prior
to the marriage (unless the will specifically states that the will was
made in contemplation of the future marriage). Once separated or divorced,
unless a will is revised, a separated or former spouse can still receive
estate assets if the will (which existed prior to the divorce or separation)
was not changed.
- A properly witnessed will requires both witnesses to be present AT
THE SAME TIME when the deceased signed the will. The two witnesses
cannot be individually witnessing the signature of the deceased at different
times.
TO REQUEST A WILL / POWER OF ATTORNEY
You may use the REQUESTING
A WILL/POWER OF ATTORNEY FORM to order your will / power of attorney
by fax (or by sending the completed form by mail to the Law Offices of
S. Shub).
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