Why do you need a Will?

Having a will allows you to speak for yourself in deciding what happens to your property and your remains. If you have underage children, elderly parents or other dependents, in your will you will choose a guardian for them, as well as instructions on their care.

A will allows you to benefit family members and other organizations or charities which may not be possible if you die without a will. In addition, by having a will you will likely save those involved in dealing with your affairs time and money.

What happens if you don’t have a Will?

  • The provincial government will get involved because no one has a legal right to your estate.  Your estate will be distributed according to the Succession Law Reform Act and according to your wishes.
  • You cannot leave your estate to the people you want.
  • You may cause your family conflict over who gets what part of your estate.
  • Your relatives will have more costs to settle your affairs and the process will take longer.
  • You cannot choose the guardian who will take care of your dependents (i.e. children) who are under the age of 18, if you have any.

What is “probate”?  What are “probate fees”?

Probate is the process whereby the courts verify that there exists a valid will and the executors appointed under the will have authority to act.  In Ontario, “probate” is called Certificate of Appointment of Estate Trustee and the process involves the personal representative making an application to the court to approve the will and confirm the executors.

The Estate Administration Tax has replaced probate fees. The tax must be paid when the personal representative files the application for a Certificate of Appointment of Estate Trustee with the Superior Court of Justice.   In Ontario, the tax is calculated as $5 per $1000 of the first $50,000 of the estate and $15 per 1000 for the value of an estate over $50,000. It works out to approximately 1.5%; for an estate of a value of one million dollars, the probate fees would be $14,500 using that formula.

Is probate always necessary?

Your particular circumstances will determine whether application to a court for a Certificate of Appointment of Estate Trustee is necessary.   For example, if all assets are held jointly, probate may not be necessary because assets held jointly automatically pass to the survivor.  Similarly, probate is not necessary for shares in private companies, RRSPs, RRIFs and insurance policies where beneficiaries are named in the plan or policy, as applicable, documents.    However, some banks may insist on probate.  Because these rules are not legislated, they vary from bank to bank and even from branch to branch. For smaller estates, the banks may not require the will to be formally probated, but if the value goes beyond their guidelines, they are going to need that will probated or they are just not going to recognize it.

Even if a bank doesn’t require probate, they still may want the executors to sign a personal indemnification in case it turns out there was a problem. If an executor is not comfortable with giving that personal indemnification or guarantee, he or she may want to pay for the probate fees and have the will probated.

You are an executor administering an estate of two million dollars. After six months, you have distributed a million dollars. Then someone shows up and challenges the Will and claims that the Will you are administering is not really the Last Will and Testament or is not valid for some other reason. Because the Will was probated, you, as executor, have protection under the Trustee Act and have no personal liability. If you are dealing with an estate without probate and have distributed funds and then find out that the document isn’t valid, you could be personally responsible to pay that money back to the estate.

What is “estate planning”?

Generally, estate planning involves organizing your affairs such that you have assurances that your wishes will be carried out and that you minimize taxes assessed on your estate.  Some well-known strategies for minimizing probate fees include:

  • joint ownership of assets with right of survivorship;
  • naming beneficiaries for RRSPs and insurance policies; and
  • transferring assets out of the estate.

Some equally well-known but more sophisticated estate planning strategies are as follows:

  • dual wills
  • spousal trusts
  • family trusts
  • estate freezes

How can you find out more information?

To find out more information on estate planning strategies to reduce probate and other taxes , read our Estate Planning Strategies document.  For more general information on estate planning, including wills and powers of attorneys, at the Ontario’s Ministry of the Attorney General’s Wills, Powers of Attorney and Trusts website or by contacting Koby Smutylo for a free consultation at 613.869.5440 or koby@lawyercorporation.ca.

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