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Mar

26

Wills and Estates | Last Will and Testament (Ontario) – Part 3

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.

This is the third of a series of MANY blog posts about Wills in Ontario. Be sure to check them all out! Here, I’ll be discussing what the benefits are of having a Will and what happens if you die without one.

Why should you have a Will?
With a Will, you can:

  • Decide who will be the beneficiaries of your estate (i.e. the pool of assets which will be distributed after certain expenditures are paid);
  • Give personal items to specific individuals;
  • Include persons who are not related to you by blood to inherit a part or all of your estate;
  • Divide the residue of your estate according to specifically identified trusts;
  • Select an Estate Trustee (i.e. a person who will administer your estate and pay out the specific trusts described in your Will);
  • Select a Custodian for your minor children (if you have any) and Guardian of their property;
  • Reduce the cost of administering your estate (e.g. by avoiding fighting and estate litigation); and
  • Reduce income taxes (especially if you die and leave a spouse behind).

What happens if you die without a Will?
In Ontario, if you die WITHOUT a Will, then someone will need to apply to the relevant court to be appointed the Estate Trustee. This application is made in the court office for the area (e.g. county, district, region, or metropolitan municipality) in which the deceased resided at the date of death. In Toronto, for example, the appropriate court is the Estates Court office located at 393 University Avenue, 10th floor, 416-326-4230 (otherwise, you make an application to the Ontario Superior Court of Justice).

Applications for Certificates of Appointment of Estate Trustee are processed by Ministry of the Attorney General court staff. They perform the duties of an estate registrar in the Civil Office of the Superior Court of Justice. These duties are prescribed by law. Staff must review each application to confirm that the application and all accompanying documents are complete and comply with the Ontario Rules of Civil Procedure (the rules of court) and other applicable legislation.

Section 74.05 of those Rules require that an Application for a Certificate of Appointment of Estate Trustee without a Will (Form 74.14 or 74.15) be accompanied by:

  1. An affidavit (Form 74.16) attesting that notice of the application (Form 74.17) has been served on all persons entitled to share in the distribution of the estate (including special ways to serve minors under 18 years old and mentally incapable persons).
  2. A renunciation (Form 74.18) from every person who is entitled in priority to be named as estate trustee and who has not joined in the application.
  3. A consent to the applicant’s appointment (Form 74.19) by persons who are entitled to share in the distribution of the estate and who together have a majority interest in the value of the assets of the estate at the date of death;
  4. The security required by the Estates Act; and
  5. Any other additional material which the court may direct (e.g. affidavit dispensing with bond, Draft Order Dispensing with bond, Draft Certificate, affidavits concerning value of estate, etc.).

If court staff have concerns about the application or accompanying materials, the application must be referred to a judge for direction. The judge may require further materials to be filed or steps taken by the personal representative in relation to the application. The Ministry strives to process certificates of appointment of estate trustee with or without a will within 15 days after the application and accompanying materials are complete and judicial direction, if required, has been obtained. If a Certificate of Appointment of Estate Trustee Without a Will is issued, it will be in Form 74.20. Be sure to consult a lawyer if you need one!

How will your property be divided if you don’t have a Will?
If someone dies without a Will in Ontario, their property will be divided according to the rules set out in the Succession Law Reform Act. There is a standard procedure which divides property according to family relationships. Here are some of those rules:

  • If a person dies without a Will and is survived by a spouse without children, then the spouse is entitled to the property absolutely: section 44.
  • Worth mentioning is that a spouse is generally entitled to a preferential share under the Regulations made under that Act up to the first $200,000 of the estate before it is divided among any remaining heirs: sections 45 and 46. This basically means that if the estate’s net worth is $200,000, then the spouse will be entitled to all of it!
  • If a person dies without a will and a spouse and one child survive, then the spouse will be entitled to their preferential share and an additional 1/2 of the residue of the estate: section 46(1).
  • If a person dies without a will and a spouse and children survive, then the spouse will be entitled to their preferential share and an additional 1/3 of the residue of the estate: section 46(2).
  • If a person dies without a will and without any spouse or children surviving, then their living parents will be entitled to the property either equally (or one of them will get it absolutely if only one is alive): section 47(3).
  • If a person dies without a will, without any spouse or children, and without any parents, then their property will be distributed equally among any living brothers and sisters (or their children): section 47(4).
  • If a person dies without a will, without any spouse or children, without any parents, and without any brothers or sisters, then their living nephews and nieces inherit an equal portion of the residue of the estate: section 47(5).
  • Finally, if a person dies and there is no surviving spouse, children, parent, brother, sister, nephew or niece, then the property “shall be distributed among the next of kin of equal degree of consanguinity to the intestate equally without representation”. If a person has no such living next of kin, then generally the estate goes to the government.

So be sure to have your Will properly drafted by a lawyer if you want to have control over who your beneficiaries are when you pass away!

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children. This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!). Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Legal Forms. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Legal Forms and make a post.

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