Wills, Powers of Attorneys and Estate Planning in Ontario

If you don’t have any assets or children, you don’t need a Will.

If you die without a valid Will, Ontario's Succession Law Reform Act sets out how your estate is distributed.

According to the Act, unless someone who is financially dependent on you makes a claim, the first $200,000 is given to your spouse if they decide to claim their entitlement. The other possibility is that they seek a claim to half of the net family property.

According to specific rules laid out in the legislation, the spouse and the descendants (e.g. children, grandchildren) share anything over $200,000.

If you die without a legal spouse (common law spouses do not count), your children will inherit the estate. If any of them have died, their descendants (e.g. your grandchildren) will inherit their share.

In cases where there is no spouse or children or grandchildren, then your parents inherit the estate equally.

When we draft your Will you decide, instead of the government deciding, who will gets your assets, who will administer your Will (make decisions about investments, minimize taxes), who will look after your children after you die, who will look after your children’s money until they are old enough to inherit it.

When we draft your Will, you can customize it to minimize the taxes that will be paid.  You can also grant flexibility so that your wealth can be maximized for distribution.

You can also make provisions for your children and ensure that they have access to your estate according to their needs as they grow older.

You decide who will get your assets. Perhaps you will have a special gift for someone special in your life and we can put that into your Will.

You decide who will administer the Will. That is the Executor role. They make decisions around the distribution and management of your assets within the framework established by the Will and according to the law. You want to choose someone you trust with money decisions. Additionally, you want to decide on two alternates just in case your first choice is unable to be your executor.

You decide who will care for your children. This is the Guardian role. Of course, you want to choose someone you trust caring for your children. We also suggest you list alternates to your first choice just in case they are not able to do it.

You decide who will administer your children’s inheritance. This is the Trustee role. They make sure to protect your children’s inheritance and they usually have the power to distribute some of it for the benefit of the children as needed. Eventually, at an age you decide, your children receive the rest of their inheritance.

We always do Powers of Attorney when we draft Wills. The Powers of Attorney appoint someone to look after your finances and make decisions about your care should you become unable to do so. You decide who gets to make these decisions when you draft Powers of Attorney with us.

Some people will buy a Will kit and do their own Will. This can work if they complete it properly and just want something standard. Often these Will kits are not completed properly and the Will is not legally valid so when the person dies, the government makes all the decisions on their behalf.

If you want to make sure your Will is valid and done properly, you should let us help you. If you want to make decisions about your asset distribution, the care of your children and protecting your children’s inheritance until they receive it, you should let us help you.

Furthermore, if you want the benefit of our experience and legal training, then you should let us help you. Money spent on your Wills is an investment in your families’ future.

If you have separated but have not yet divorced, and you die without a Will, your spouse will receive the first $200,000.00 and then share the remainder with your children. If you want to prevent that, then you must create a new Will. We can help.

No. The law does not recognize your common law spouse as your spouce. If you die without a Will, then your legal spouse (not your common law spouse) will get the first $200,000.00 of your estate and the rest will be shared with your children. Your common law spouse would get nothing unless they went to court and proved their financial dependency on you. They may have a chance of getting something if they prove dependency.

No. A Will made before your marriage is automatically revoked when you get married unless the Will was “made in contemplation of the marriage”. You must specifically state in your Will that it is your intention that this Will be valid after your upcoming marriage.

It’s complicated. Your divorce does not automatically revoke your Will. Instead, your Will will be read as if your ex-spouse died immediately prior to your death.  This means that your ex-spouse will not be an executor or beneficiary (unless you specifically addressed divorce in your Will). Generally, in the case of a divorce, you should immediately do a new Will and revoke all prior Wills.

No. Separation or divorce does not affect any beneficiary designations on your pensions, RRIFs, RRSPs and TFSAs. You must change them, either with the financial institution or by clear language in a new Will made after separation.

A Power of Attorney is a legal document in which you give someone the right to make decisions for you if you are no longer able to make decisions for yourself.

There are two types of Power of Attorney:

Power of Attorney for Personal Care – the person you name will make decisions about your health care, housing if you are no longer able to make decisions yourself.

Power of Attorney for Property – the person you name will make decisions about your financial matters if you are no longer able to make decisions yourself.

If you don’t create a Power of Attorney, someone can apply to the court to be appointed. However, this is expensive. Alternatively, the government can decide who makes decisions about your finances and care.

When we draft Wills, we always do Powers of Attorney.

First step is you contact our office and we will send you a questionnaire.

It is long and detailed. Set aside some time to complete it properly. We ask a lot of details so that we can determine exactly what you need in your Will. If your situation requires complicated Will and estate planning beyond the standard Will preparation, we will let you know before we begin working on your case. We won’t do any work or charge you any fees until we have explained exactly what it will cost. We need to know about your situation (hence the questionnaire) before we can determine your needs and the costs. Most Wills fall within our standard fees. If you do not fully disclose your situation in the questionnaire and we subsequently discover complications outside of the standard Will, you will be charged for the additional services. Please complete the questionnaire fully so we don’t have any surprises going forward.

We need the information asked by the questionnaire to ensure everything relevant is taken care of for you. We don’t want your family to have any problems with your Will after your death. Additionally, we want to make it simple for your family so we do it right now.