Jun 19, 2023
Half of Canadians don’t have a Will. Many people think that only the ultra-wealthy would need an official document to distribute their assets after death. However, there are several reasons to talk to a lawyer about making a Will, regardless of how much your estate is worth.
You’re In Charge
A Will gives you the flexibility to decide where your belongings go after your death. Without one, you will die intestate. This means your spouse and/or children will likely receive everything.
Even if this was the plan all along, you probably have a few things you want to go to someone else after you pass away. You might want your favourite guitar to go to your bandmates, or your shoe collection to be donated to the Salvation Army. Without a Will, your loved ones will be left to sort through all your things and piece together where you would have wanted them to go.
Children
One of the main benefits of making a Will is to cement who will care for your children after you pass away. Having a document that names the trusted friend or family member of your choosing will help you rest easy knowing your children will be taken care of no matter what.
Pets
Wills can have special provisions for pets. You can set out who you would like your pet to live with after you die and you can even name a substitute person if your first choice is unable to care for them. This will greatly minimize the chances your pet ends up in a shelter. In addition, if you wish to set aside some money to care for your pet, your lawyer can help you set up a pet trust for the person taking your furry friend after you pass away.
Funeral and Burial
A Will is one of the best places to express your funeral and burial wishes. This can be a huge help to your loved ones, who can spend time grieving rather than deciding what you would have wanted.
How Do I Make A Will?
It’s always best to get help from a lawyer you trust when drafting a document as important as a Will. You might need some complicated provisions that only someone with years of experience would know about.
Making a Will is an easy way to ensure those you care about are provided for and have all the tools they need to take care of things after you die.
Colleen Dowling
Colleen has joined Casey & Moss as our summer student and will be returning as our articling student in 2024. She is an incoming third-year law student at Queen’s University. Her interest in Estate Litigation began while working as a caseworker at the Queen’s Elder Law clinic where she drafted Wills and Powers of Attorney for seniors who would otherwise have difficulty affording legal counsel. She is greatly looking forward to returning to the firm to complete her articles.
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Jun 8, 2023
As an Executor, it is your responsibility to determine the value of the Deceased’s assets as of his or her date of death. Depending on the relationship between the Deceased and the Executor, this step can be easy or a little complicated. If you are not familiar with the Deceased’s assets, below are some ways an Executor would be able to determine the assets of the estate.
- Review the Will, if there is one: If the Deceased left a Will there may be mentions of assets that they own such as real estate, bank and investment accounts, valuable household items, jewellery etc. This would prompt the Executor to go searching for those assets.
- Search the Deceased’s personal belongings: If you have access to the Deceased’s residence, completing a thorough search of the Deceased’s personal belongings can also provide the Executor with an idea of what the Deceased owned as of his or her date of death. For example, locating financial statements, tax returns, mail, emails, and loyalty cards.
- Contacting Financial Institutions: Another way to search for information concerning the Deceased’s assets is to contact banks, investment companies and credit unions to request information on all accounts they are holding in the name of the Deceased. This also gives the Executor an opportunity to identify the liabilities of the Estate as the banks would normally also provide information regarding any mortgages or lines of credit the Deceased may have had at the time of his or her passing.
Overall, investigating estate assets can be very frustrating and time consuming. But with a lot of patience and good record keeping, the Executor can locate these assets and prepare a work plan to properly administer the estate.
Felicia Cyril
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Jun 5, 2023
We often find affidavits ending with a concluding paragraph that states, “I swear this affidavit in support of [my application, motion, etc] and for no other or improper purpose.” This boilerplate ending seem like a useful concluding phrase, but does it have any real purpose? And should it even be there?
It turns out, at least in our practice area of estates litigation, you are better off without it. There is no need to specifically limit the purpose you are swearing an affidavit for, and no need to say that you are not swearing it for any “improper purpose”. That much is presumed. Courts have been clear that a concluding paragraph of that “is not required in either form of substance” (see, for example, Powers v. Webber (Estate of), 2020 ONSC 2359 (CanLII), at para 11).
This sentence can also cause difficulty if used thoughtlessly. For example, lawyers have accidentally included it in affidavits of parties who are supposed to be neutral, such as experts. In that case, it’s quite improper for the expert to swear an affidavit in support of anyone’s motion or application. Their duty is to the court. In other instances, affiants have been taken by this phrase to support relief they may not have intended to consent to, simply because of a boilerplate clause at the end of their affidavit.
All in all, it’s best to remove this language from your precedent. It sounds important, but it’s not, and it can have unintended consequences.
Laura Cardiff
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
May 12, 2023
Welcome to the inaugural Casey & Moss Blog, where our team will be posting about estates, trusts, and capacity law issues every Friday.
The word “probate” is often heard in films and TV shows in the context of a deceased person and their estate… but what is probate, really? And who can apply for it?
Generally, in Ontario, probate is the court procedure to formally approve and recognize the Last Will and Testament as the valid Will of the deceased person, and/or to appoint an individual as the estate trustee (or “executor”) of a deceased’s person estate. The court issues a “Certificate of Appointment of Estate Trustee” to the estate trustee, which gives or confirms the estate trustee’s authority to act on behalf of the Estate.
The Certificate of Appointment of Estate Trustee can be obtained even if the deceased person did not have a Will. The application procedure is largely the same. However, there are differences in the applicant’s residency requirements and security or bond requirements, pursuant to the Estates Act.
In circumstances where the deceased person had a Will, the applicant would apply for a Certificate of Appointment of Estate Trustee With a Will, or “letters probate”. The legislation provides that probate shall not be granted to a non-resident of Ontario or non-resident of the Commonwealth unless the applicant posts security, or the court dispenses with security or reduces the amount of security.
Where the deceased person died without a Will, the applicant would apply for a Certificate of Appointment of Estate Trustee Without a Will, or “letters of administration”. Generally, the applicant must reside in Ontario and security must be posted. However, the court has the authority to put the residency requirement aside and appoint a non-resident of Ontario to administer the estate as it sees fit and on the appropriate terms, including terms about posting security.
What if the deceased person died with a Will but did not name an estate trustee, or the named estate trustee is unable or unwilling to act? The applicant would apply for “letters of administration with will annexed” as it’s called in the Estates Act. Similar to the requirements for a Certificate of Appointment of Estate Trustee Without a Will, the applicant must reside in Ontario, but the court has the residual authority to set aside the residency requirement.
There are other types of probate that can be obtained that this blog won’t touch on today, including “probate or letters ancillary” and “resealings” which have their own set of rules about residency and security. We will reserve these topics for a blog post for another day.
Thank you for reading our inaugural Casey & Moss blog post!
Zara Wong
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
