Making a Will in Ontario
Creating a will might seem overwhelming, but it’s essential to ensure your wishes are followed after you pass away. Without a will, the courts decide how your assets are distributed, which might not align with your intentions.
In Ontario, a will is not just about distributing your wealth; it’s about protecting your loved ones, reducing the burden on your family during a difficult time, and ensuring your estate is handled smoothly.
This guide will walk you through making a legal will in Ontario, ensuring your estate is managed according to your desires and providing peace of mind for you and your family.
What is a Will?
Definition
A will, also known as a last will and testament, is a legal document that specifies how your assets will be distributed and who will manage your estate after your death.
This document is crucial in ensuring that your wishes regarding the distribution of your property, money, and personal items are followed.
Purpose
A will’s primary purpose is to ensure your assets are passed on to the people or charities you choose. It helps prevent disputes among your loved ones and ensures your estate is handled according to your desires.
Additionally, a will can include provisions for the care of minor children, appointing guardians who will take responsibility for them if both parents pass away simultaneously. By clearly outlining your wishes, a will provides peace of mind and reduces the burden on your family during a challenging time.
Importance of Having a Will
Protection
Creating a will is crucial for protecting your family’s future. Without a will, your loved ones might face difficult decisions during an already emotional time. A will provides clear instructions on how your assets should be distributed, helping to prevent disputes and ensuring that your wishes are honored.
Avoid Intestacy
If you die without a will, known as dying intestate, the courts will decide how your estate is distributed according to Ontario’s laws. This process might not align with your wishes and can leave out essential individuals, such as common-law partners or close friends.
By having a will, you maintain control over who inherits your assets, ensuring your intentions are followed and empowering you to make decisions about your estate.
Ease for Loved Ones
A well-prepared will simplifies the administrative process for your family, reducing the time and cost associated with settling your estate. It minimizes the stress and confusion that can arise when there are no clear instructions, allowing your loved ones to focus on grieving and supporting each other, providing them with a sense of relief and comfort.
Appointing Guardians
For parents of minor children, a will allows you to appoint guardians who will take care of your children if both parents pass away. This ensures that your children are cared for by someone you trust, providing them stability and security.
Ensuring Specific Wishes
A will enables you to leave specific gifts or donations to individuals or charities. Whether it’s a family heirloom, a piece of property, or a monetary donation, your will ensures that these special wishes are carried out exactly as you intended.
Who Can Make a Will in Ontario?
Age and Mental Capacity
In Ontario, any individual who is at least 18 years old and of sound mind can make a will. Being of sound mind means understanding the nature of the document you are creating, the extent of your assets, and the implications of distributing your estate in the manner you choose.
Exceptions for Under 18
There are specific circumstances where individuals under the age of 18 can make a will:
- If you are married or have been married.
- If you are a member of the Canadian Forces on active duty.
- If you are a sailor at sea or during a voyage.
Mental Capability
Being mentally capable is a crucial requirement. You must understand the nature of the act of making a will, know what property you have, and comprehend the impact of your decisions regarding the distribution of your estate.
Legal Considerations
It’s essential to ensure that your will meets all legal requirements to be considered valid. This includes proper witnessing and signing procedures. While you can create a will without a lawyer, consulting with one can help ensure your will is legally sound and genuinely reflects your wishes. We are here to assist you and make this much easier. Contact us now to begin the process.
Steps to Creating a Will
Identify Your Assets
Begin by making a comprehensive list of all your assets. This includes real estate properties, bank accounts, investments, personal belongings, and any other valuable items you own. Knowing the full scope of your assets will help you make informed decisions about their distribution.
Choose Beneficiaries
Decide who will receive your assets. Beneficiaries can include family members, friends, or charities. Specify what each beneficiary will accept to avoid any confusion or disputes.
Select an Executor
Appoint a trustworthy person to act as your executor. This individual will be responsible for carrying out the instructions in your will, managing your estate, and ensuring your wishes are followed. Discussing this role with the person beforehand is a good idea to ensure they are willing and able to take on these responsibilities.
Appoint Guardians for Minor Children
If you have children under 18, it’s crucial to name guardians who will take care of them if both parents pass away. Choosing someone you trust to raise your children is not just a legal requirement but a demonstration of your responsibility and care for their well-being and stability.
Decide on Specific Gifts
Detail specific items or amounts of money you want to leave to particular individuals or organizations. This could include family heirlooms like a vintage watch, jewelry, or special donations to charities such as a percentage of your estate.
Draft Your Will
You can draft your will using various methods:
- Online Will Platforms: These platforms provide a convenient and affordable way to create a will from the comfort of your home. The cost can vary depending on the platform and the complexity of your estate.
- Will Kits: Pre-printed templates are available at a low cost. These are suitable for simple estates.
- Lawyer-Drafted Wills: We recommend letting us handle the process for you. This relieves any burden on you and allows us to ensure a smooth process. Let’s get in contact and we will walk you through what is required.
Sign Your Will
To make your will legally binding, it must be signed by two witnesses who are not beneficiaries. The witnesses must also sign the will in your presence. This step is crucial for the validity of your will.
Store Your Will Safely
Keep the original signed copy of your will in a safe place, such as a safe deposit box or with your lawyer. Inform your executor and trusted family members where the will is stored so it can be easily accessed.
Following these steps ensures that your will is comprehensive, legally valid, and reflects your wishes. This preparation provides peace of mind, knowing your loved ones will be cared for according to your intentions.
Probate and Its Necessity
Definition and Process
Probate is the legal process where the court validates your will and grants the executor the authority to manage and distribute your estate. This process ensures that your will is genuine, your assets are correctly accounted for, and your debts and taxes are paid before distribution to your beneficiaries.
When Probate is Required
Most estates in Ontario require probate, but there are some exceptions. Probate is generally necessary when:
- Real Estate is Involved: If you own property solely in your name, probate must transfer the title to your beneficiaries.
- Financial Institutions Demand It: Banks and other institutions may require probate to release funds from your accounts.
- No Joint Ownership or Beneficiary Designations: Assets not held jointly or without designated beneficiaries, like some bank accounts and investment portfolios, typically need probate.
When Probate is Not Required
Probate might not be necessary in some instances, such as:
- Joint Tenancy: If you own property jointly with rights of survivorship, it automatically passes to the surviving owner.
- Designated Beneficiaries: Assets like life insurance policies and registered accounts (RRSPs, TFSAs) with named beneficiaries bypass the probate process.
Probate Fees
In Ontario, probate fees, also known as Estate Administration Tax, are calculated based on the value of your estate. As of now, no probate fees are charged on the first $1,000 of the estate’s value. For estates over $1,000, the fee is approximately 1.5% of the estate’s value.
Minimizing Probate
There are strategies to minimize probate fees and simplify the process for your loved ones:
- Joint Ownership: Holding assets jointly can help avoid probate, but it’s essential to understand the legal and tax implications.
- Beneficiary Designations: Designate beneficiaries on accounts and policies where possible.
- Trusts: Establishing trusts can manage and distribute assets without going through probate.
Hire Professional Help
Dealing with issues like wills and estates can be taxing and complex. At Forrest Law, we are specialized in this field and are ready to help you. Contact us now to get started!