Wills and Estate Planning

Our firm assists our clients by helping to plan their estates by taking into consideration the various types of taxes which may be payable upon their death and taking steps to minimize those taxes, including capital gains tax, income tax and probate fees. We take into consideration the provisions of the Family Law Act, the Succession Law Reform Act, the Estates Administration Act and various other pertinent pieces of legislation and case law when preparing wills. Even the simplest estate requires a carefully prepared will in order that the wishes of the testator (person making the will) are carried out in the way that person intends them to be carried out.

For persons who have assets of various types such as a home, a cottage, shares in a public or private corporation, RRSPs and RRIFs, works of art, an interest in a family trust, commercial property, industrial property and rental property, it is absolutely essential that extreme care be taken in drafting their last will and testament. Only knowledge and experience can accomplish proper estate planning.

Probate

Where there is a will, the executor or trustee, in order to obtain authority to deal with the deceased's assets, must apply to the Court to obtain the Court's authority to act in carrying out the deceased's wishes according to his or her last will and testament. Generally speaking, where there is no will, the closest relative is entitled to apply for letters of administration to wind up the deceased's estate in accordance with the provincial legislation which provides rules of division of the estate.

"Probate" and "Administration" are now known as "Certificate of Appointment of Estate Trustee with a Will" and "Certificate of Appointment of Estate Trustee without a Will", respectively.

Will

A will is a document which can be fairly simple or very complicated, depending on the type and number of assets a person has and the person's wishes. It is always wise to consult a lawyer when preparing a will because if a mistake is made it is very difficult and expensive, if not impossible, to correct after the maker of the will dies. There have been many court cases arising from wills which were improperly drafted.

Intestacy

When a person dies without a will, he or she is said to die "intestate". When this happens, his or her estate is distributed according to the law of the particular province (in Ontario, the Succession Law Reform Act) in which the person resided at the time of death. That law dictates that the estate is to be divided among the deceased's relatives in a prescribed manner. In many cases that is probably not what the person would have wished done with his or her estate.

Probate Fees

These are prescribed by provincial statute. In Ontario, they amount to 0.5% of the first $50,000 of the value of the estate, i.e., $250.00, and 1.5% of the balance of the estate. For example, the probate fees on an estate worth $250,000.00 would amount to $3,250.00.

There are ways to save a considerable amount on probate fees by dealing, in a separate will, with certain assets which do not need to be put through the probate process.

Powers of Attorney

Everyone should have a power of attorney for property and a power of attorney for care.

A power of attorney for property designates a person or persons to handle the financial affairs of someone who, through some sort of illness, is unable to deal with their own affairs. It is essential that someone be appointed to attend to their banking, their investments, the sale of a home or other assets and, in general, the signing or execution of all routine documents and financial instruments encountered during the daily routine of life.

A power of attorney for care designates someone to represent the person who is ill insofar as hospital care, nursing home care and the type of medical treatment desired are concerned.