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Wills & Estates FAQ

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Wills & Estates FAQ

Postby Pinskylaw.ca » 21 Sep 2017, 14:57

1. What is a Will?

A Will is a legal declaration by which a person provides for the distribution of his or her assets at death. A Will usually appoints a person or corporation such as a trust company to act on their behalf to administer their assets and distribute them in accordance with the instructions contained in the Will of the deceased.

2. What if one dies without a Will?

If you die without a Will, the Province of Ontario has determined that a spouse receives the first $200,000.00 of the deceased’s assets and if there is one child the balance of the deceased’s assets over $200,000.00 will be shared equally between the spouse and the child. If there are two or more children the surviving spouse will get the first $200,000.00 and one-third of the remaining assets and the surviving children will equally share two-thirds of the remaining assets.

3. What is an Estate?

An Estate is comprised of the assets and liabilities of a deceased person.

4. What is Probate?

Probate is a term commonly used to describe the process of having a Will certified by the Superior Court of Justice as the “Last Will and Testament” of the deceased. People dealing with the Estate know, once a Will has been “probated” that the person appointed to act on behalf of the deceased has authority to do so and that the desires of the deceased as set out in the Will are to be completed or fulfilled. The process is now called an “Application for a Certificate of Appointment of Estate Trustee With a Will”.

5. What fees have to be paid to probate a Will?

A fee, payable at the time of the application to the Court, of one-half of one percent (0.005%) on the value of the Estate up to $50,000.00 plus, if applicable, one and one-half percent (0.015%)of the value of the Estate over $50,000.00.

6. Do all estates have to be probated?

No, not all estates have to be probated. Small estates often do not have to be probated. Generally, if there is real estate or investments, probate will be required.

7. How can I find a deceased person's Will?

If the deceased person had significant assets and particularly if they had real estate you may be able to obtain a copy of the Will by going to the Court House in the jurisdiction (County) where the deceased resided at the time of their death. Only those people who are to receive the final portion of an estate (called the residue) are entitled to receive a copy of the Will.

8. What does it mean to make an election under the Family Law Act?

The Family Law Act in Ontario gives a widow or widower six months following the date of their spouse’s death to decide whether they wish to take an interest in the estate of the deceased pursuant to the terms of the deceased’s Will or under the Family Law Act. A calculation must be done to determine which is most favourable/beneficial to the surviving spouse.

9. What happens with the debts of the deceased?

The debts of the deceased are a first charge on the assets of the deceased such that the debts are paid before any individual receives any benefit under the Will.

10. What are the income tax consequences?

Upon death you are deemed to have sold all of your assets. If the assets you hold such as stocks have increased in value then there will be income tax to be paid in respect of the deemed disposition of those assets. If you have an RRSP or a RRIF and no spouse all of the money in the RRSP or RRIF comes into the income of the deceased upon their death and income tax will be due and payable based on the amount of income that the deceased has deemed to have earned from the RRSP or RRIF coming into their income at the time of death. Income tax can be postponed if an RRSP or a RRIF is transferred to the spouse of the deceased.

11. Can an executor charge a fee?

Executors can charge a fee usually 2.5% to 3.0% of the assets brought into the estate and 2.5% to 3.0% of the assets distributed as part of the administration of the estate.

12. How long does it take to administer an estate?

The length of time it takes to administer the estate is dependent on the nature of the assets in the estate. If the assets of an estate consist of a bank account it should not take very long to administer the estate although there may have to be income tax returns filed and Clearance Certificates obtained which may delay the final resolution of the estate. If there is real estate to be sold or a business to be operated then it may take some time for the estate to be administered.

13. What is a Power of Attorney

A Power of Attorney is a document whereby an individual called a grantor appoints another person or persons to act on behalf of the grantor in the event the grantor is not able to act. There are two kinds of Powers of Attorney in Ontario. The first kind of Power of Attorney is called a Power of Attorney for Property and enables the person appointed to do anything that the grantor could do except make a Will. The second kind of Power of Attorney is called a Power of Attorney for Personal Care. The person appointed to be the attorney for personal care can make health care decisions for the grantor. Generally Powers of Attorney are utilized only when the grantor is not capable of making decisions however, Powers of Attorney for Property may be used if someone is not able because of particular circumstances to attend to their personal financial affairs making it necessary for the attorney to act on behalf of the grantor. If, for example, a person is selling their house in Barrie but they have been transferred to Singapore, they may appoint an attorney to handle the real estate transaction in Barrie on their behalf because they are not going to be readily available to sign the necessary documents. Powers of Attorney cease to be valid immediately upon the death of the grantor.
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