Bringing Clarity to Probate and Estates

Orlando da Silva Santos  Estates Lawyer

Orlando da Silva Santos

Estates Lawyer

Welcome to Easy Probate, a division of a  Brampton, Ontario law firm with decades of experience in Estates, Wills, Powers of Attorney, and Trustee Appointments procedures. 

We can give you straightforward, expert advice on Probate in Ontario.  For those with a Last Will and Testament (testate succession), and those without a Last Will and Testament (intestate succession), we can help.

We are a team of professionals that bring decades of experience to bear at the most trying of times.

Our goal is to provide great service at a fair price which is made clear and transparent to our clients.

Our services range from taking out the probate to full Estate Administration.

A well thought out Estate starts with a well crafted Will, one of those things that we often do not want to think about. Our Will and Living Wills service start at $299, making it easier to create this very important document.

 

 

BRINGING CLARITY TO willS and living willS

Lu Amaral  Wills and Estates Specialist

Lu Amaral

Wills and Estates Specialist

For the unexpected, and for the planned, a Last Will and Testament is your assurance that those you love are protected, and our Easy Wills solution gives you the flexibility to choose what you need, at a price that you can afford.  Preparing a will that properly and adequately sets out your testamentary wishes is not a simple task and the problems that can arise if it is not done properly can result in significant expense for your estate, and the beneficiaries for whom you're actually planning to provide.  The information that follows applies to a Last Will and Testament, and the factors that should be considered. Living Wills - Continuing Powers of Attorney for Property and Personal Care - are documents that we recommend be done at the same time as a Will. The information is for guidance only, but it is not to be construed to be legal advice. For legal advice, we will gladly sit down with you in a no obligation consultation to consider all of your needs and options carefully. 

We have options to meet every need, starting at $299

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Why it is important to make a Will. If you die without making a will (called intestate succession) there are rules set by law as to whom inherits, dictating how your money is distributed on death. The rights of intestate succession, as this is called, dictate how your money, property or possessions are allocated if there is no written legal will. This may not be the way that you would have wished your money and possessions to be distributed after your passing.

Dying without a Last Will and Testament would cause those who will have to deal with your affairs a lot of problems, because they may not be sure of how you want your estate distributed after your death. They will be obliged by law to deal with the estate and distribute it in a particular way, which may not be what you would have chosen. Disputes over Wills can drive families apart and may need a lawyer to resolve them. Leaving a Will removes any doubt about to whom you want to leave your money and property. If you do not take professional advice about how best to plan your financial affairs before your death, and leave a properly drafted will, it is possible that some of your estate will go to the Government in unnecessary tax.

We offer Will and Living Will options that meet every need.

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WILL AND LIVING WILL PACKAGE OPTIONS

Single Will, $299

Single Living Wills (Personal Care and Property), $299

Single Will and Living Wills package, $399

 

Spousal Wills, $399

Spousal Living Wills (Personal Care and Property), $399

Spousal Wills and Living Wills package, $599

Not sure which option is for you?  Contact Lu directly 647-638-2284.

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Couples who live together. Couples who are not married do not automatically inherit from each other when one partner dies unless there is a will. The death of one partner may create serious financial problems for the remaining spouse because there are no automatic rights to inherit.

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Protecting Children. If you have children you should make a will to protect them. You can name a guardian in your will or leave instructions for how they should provide care for your children. You may consider setting up a trust, particularly is the child(ren) has a disability.

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Is it necessary to use a lawyer in drafting a will? It is a usually wise to use the services of a lawyer in drafting a Last Will and Testament, or if you insist on drafting it yourself, it is most certainly wise to have a lawyer look at it to ensure that it complies with all legal requirements. It is very easy to make mistakes and if there are errors in the will this can cause problems and unnecessary expenses to the heirs. Sorting out misunderstandings and disputes can result in much expense in legal fees and expenses, which of course means there is less to distribute to the heirs.

Common mistakes made by people drafting their own will without lawyer supervision include the following:

  • not knowing about the formal requirements needed to make a will legally valid;

  • failing to take account of all the money and property available with the result that when you die some property has to be dealt with under the rules that apply when there is no will (intestacy);

  • failing to include directions about what happens if a beneficiary dies either before you or before the estate is settled. A will can be drafted to account for these contingencies;

  • changing the will. If these alterations are not signed and witnessed, they are invalid;

  • being unaware that in Ontario if you have a Will prior to marriage, it is automatically revoked upon marriage (the entire Will is cancelled). To avoid that outcome one can make a Will in contemplation of the marriage;

  • being unaware that if you give less in your will to your spouse than they would be entitled to in a divorce, then it is likely that they will in effect 'challenge the will' and make the election that permits them to receive as if you were divorced;

  • a divorce has a different effect on your Will. If you get a divorce, your Will is not cancelled. Instead, only the provisions in your Will that refer to your spouse are revoked. This means that your former spouse will no longer be your executor, trustee or guardian, and any gifts you left to your former spouse will go to someone else. Who the gifts will now go to will depend on the structure of your Will. It is important to understand that separation from a spouse where the couple was legally married, generally has no impact on the Will. Because it can get confusing, you should consider making a new Will when you get divorced, or become separated from a common-law partner; and

  • being unaware of the rules which exist to enable dependants to claim from the estate if they believe they are not adequately provided for. This failing can result in the will being overturned if dependent’s rights are not property accounted for.

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Our office has seen other examples.

When is it most wise to use the services of a lawyer in will drafting and advice? There are circumstances where legal advice and skill are most important, including:

  • you share ownership of a property with someone who is not your spouse by marriage;

  • you wish to make provision for a dependent who is unable to care for themselves, for example in a testamentary trust;

  • there are several family members who may make a claim on a will, for example, a second wife or children from a first marriage;

  • you are resident in Ontario but own or part-own foreign property; or

  • you are involved in a business.

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What should be included in a will? To save time and reduce cost when visiting our office you should give some thought to the major points which you want to be included in your will. You should consider at least the following:

  • how much money and what property and possessions you have (bank accounts, insurance policies, Registered Retirement Savings Plans, pension(s), etc.);

  • if you want to included digital assets in your will. Digital assets are anything that is stored online, for example, music and photos; social media accounts; online photograph albums, online gaming identities. You will need to make a list of how to access all these accounts, and you will need to consider questions of legal jurisdiction (Canada, United States or other countries hosting the assets);

  • who you want to benefit from you will. You should make a list of all the people whom you wish to leave money or possessions, known as your beneficiaries. You also need to consider whether you wish to leave any money to charity;

  • who should look after any children under 16 and what provisions need to be made for them and any older children;

  • who is going to sort out the estate and carry out your wishes as set out in the will. These people are known as executors or estate trustees; and

  • if you want to leave property to a transgender person you must seek advice as you may have to refer to the person in their acquired gender, not their birth gender.

Property owned joint, with or without survivorship designations, require particular attention. Likewise beneficiary designations in insurance policies and death benefits in pensions are items requiring careful attention and provision. These designations can override what it says about property in a will.

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Who are Executors? Executors are the people who will be responsible for carrying out your wishes and for sorting out your estate (property and possessions), and payment of all debts. They will have to collect together all the assets of the estate and deal with the paperwork. They may have to pay all the debts, taxes, funeral and administration costs out of money in the estate. They will need to pay out the financial assets and other possessions and transfer any property to beneficiaries.

Sometimes, they will have to sort out the problems that exist because there isn’t enough money in the estate to pay all the debts due; the so called “insolvent estate” presently particularly difficult challenges.

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Who to choose as Executors? It is not necessary to appoint more than one executor although it is advisable to do so for various reasons, in case one dies for example. It is common to appoint at least two people as executors, often for reasons of them keeping an eye on each other, or some other practical reason. If there is more than one executor named, they must act jointly, with neither of them is the "lead" executor or "main" executor. Each has equal legal authority.

Appointing more than one executor is not unusual. However, you must consider how the people you wish to appoint will get along, and how practical it will be for them to act in consort in making important decisions and making documentary affirmations.

From time to time clients want to appoint all of their children together to be their executors. This wish is an overabundance of caution wrapped in difficult logistics and behavioural concerns. If four or five people have to review and sign every document, everything is going to take longer. The chances that four or five siblings will agree on the decisions that have to be made seems improbable. People have different values, different expectations, different decision-making styles, and spouses of the executors may also be involved in the decisions that need to be made - it may be asking for trouble to expect harmony in this context. Avoiding potential for deadlock conserves the estate by avoiding the need for court intervention to break deadlocks.

It is important to choose executors with considerable care as their job involves a great deal of work and responsibility. You should always approach someone first if you are thinking of appointing them as an executor in your will. If someone does not want to be named as an executor in your will they can refuse.

If you do not appoint any executors in your will the court will have to do this after your death. Once the court appoints an executor that person cannot resign or take on other executors without going back to the court for permission, an expense with the estate must bear, which of course reduces the amount available for distribution to beneficiaries.

In an executor dies, any other surviving executor(s) can deal with the estate. If there are no surviving executors, the court can appoint one.

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Trust vs. Will. A will allocates money by naming the recipients of your estate. A trust, on the other hand, provides instructions on money that you want to go to a specific person in a specific manner. Examples might include leaving money to a special needs child who could use the help of a trustee to manage his finances. You might also use a trust to dictate rules about how and when your money will be distributed. For example, maybe you would like your child to receive their share in instalments, over months, or years. This can be done using a trust document, inside or outside a Last Will and Testament. If setting up a trust is something you think is right for your situation, we can discuss this carefully and provide you with guidance on options.

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What information do I need before making a Will? It is helpful to have the following prepared for our first meeting:

Your assets: That includes bank account balances, real estate, investments, retirement plans, life insurance policies, artwork and anything else that you are leaving behind.

Your debts: Your last will and testament can help establish how your estate should settle your debts. First, your assets will likely pay for any probate costs and funeral expenses. Then, they will be used to pay your outstanding debts. But certain debts may be approached differently: if you leave a house to a named beneficiary, and that how has a mortgage on it, should this debt be extinguished by your estate? These type of questions can be clarified by a properly crafted Last Will and Testament.

The executor of your Estate: The executor will make sure that your wishes are carried out and that your finances are in order. This could include making sure your beneficiaries receive the money you have left them. It can also include filing your final tax return(s), paying any bills you left behind and closing your various accounts. While you can name a family member to be your executor, in fact you can name anyone. The only consideration is that the person you nominate is legally competent, and is a resident of Canada. While naming a professional executor is an option - such as a lawyer, or a financial planner - there is added expense in making this choice.

Your children’s Legal Guardian: The legal guardian will be responsible for your children’s welfare. That includes providing for food, shelter, health and schooling until age 18. While not strictly necessary, it is not a bad idea to have conversation with the person whom you like to appoint; its important that he or she agree to take on this responsibility. The decision to appoint a legal guardian is subject to judicial review, and it will always be up to a judge to decide what is in the best interest of the child. You can even include a letter of explanation with your documents, in case a judge questions your choice of legal guardian. The judge’s job will be to seek out the child’s best interest, so if you have chosen someone contentious you might want to explain how this person is the best choice for providing stability and meeting your child’s needs, as well as the child’s own preference, if known.

Your beneficiaries: It is important to have a clear idea as to whom will inherit your assets on your passing. For most people, this is a spouse and/or children, or other family members, but this is not a legal requirement in Ontario.

Bequests: In addition to naming beneficiaries of your will, you can also leave a bequest. That’s a specific item or asset you would like to leave to a person or entity. Drafting of bequest requires special care in identification, clarity and certainty, so detailing what you wish to bequeath, how it is identifiable, and to whom the bequest is to be made is the beginning point.

Pets: When writing a will, you might note who should take care of your animals after you die, and what money they will use to do so.

Funeral Arrangements: Your Last Will and Testament should address any specific wishes you may have in terms of your funeral. While we recommend that you discuss this with your Executor(s) as he or she will make the final decision on this question, you may also contain a provision in your Will with respect to your thoughts on this question.

Digital Assets: This is new phenomena, but your online identity may contain much that is of sentimental value such as photos, and may actually have a monetary value. So, what do you want to happen to your Facebook account? Does your spouse know the password to login and modify the account as needed? If you have particular wishes regarding your digital assets, you can include those instructions when writing your Last Will and Testament. Or you can leave a letter of instructions with the Will that can give guidance to your Executor. Either way, this question is a very important issue in today’s world.

This is a short list. Other factors can come into play, and you may have questions that require addressing.

And of course, once your Will is done, you will need to keep it updated whenever your undergo a major life event such as the birth of a child, your marriage or divorce, buying or selling a house, the death of one of your beneficiaries or executors, or major changes in your financial situation, all call for consideration of whether an existing Last Will and Testament needs updating. If your goal is Will updating, we require that you bring in your original Will when we meet for a complimentary consultation.

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Living Wills: A medical Power of Attorney, a health care directive, in Ontario known as a Continuing Power of Attorney for Personal Care, names someone you trust to make decisions about your health, and may contain express instructions on events such as being put on life support, or other matters, or may simply leave the person whom I have entrusted with the power and responsibility to make these decisions when you are unable to do so.

A durable Power of Attorney names someone to manage your finances if you are incapable of doing so, through incapacity. These Continuing Power of Attorneys for Property can name the same person as your health care Power of Attorney, or it may be an entirely different person, recognizing the very different nature of the living Will tent.

We recommend that you attend to a medical and a finance Power of Attorney along with your Last Will and Testament.

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This section is designed to provide general information on the subjects covered. It is not intended to provide any specific legal advice or to serve as the basis for any decision. Need more information? Consider our no obligation free consultation.