Rosa Carlino is an associate lawyer with Cheadles LLP. She obtained her Juris Doctor degree from the University of Windsor in 2012 and has been practicing law since June 2013. Rosa has focused her legal work on corporate, commercial, wills, estates and real estate law. She can be reached at 807-622-6821 or email@example.com.
By Rosa Carlino, Cheadles LLP - November 10, 2018
A will is a legal document that provides instructions on how an individual’s estate will be distributed after death. It comes into effect only after a person dies. The purpose of a will, in general, is to ensure that the estate is distributed in the manner the deceased desired, to provide authority to the estate trustee, and to provide protection for the estate and for the rightful beneficiaries.
The standard will should include, at the very minimum: appointment of an estate trustee, authorizing the estate trustee to act on behalf of the estate, and instructions for the distribution of the proceeds of the estate. The will can also include provisions for investment of trusts, charitable giving, appointment of a guardian for children, funeral instructions, and many more.
A will encompasses all of the assets of the deceased, but there are some exceptions. The estate generally includes real property, vehicles, interests in corporations, investments, bank accounts, jewelry, artwork, etc. If the value of these assets is over $50,000, and/or you have real property (i.e. land) in your name solely, an appointment of an estate trustee would be required at your death before any of these assets could be distributed. This appointment also requires a valuation of the assets of the deceased. The valuation is necessary to calculate estate administration taxes.
Some assets do not fall under the will and would not need to be included in the valuation for taxes payable. For instance, TFSA, RRSP, life insurance policy or pension that have a named beneficiary are not included in a will. This is beneficial because the named beneficiary receives the full amount of the account/plan/policy without delay. Remember though, that a will cannot change that designation so make sure you have the correct beneficiary listed under each plan.
Furthermore, a home owned with other individual(s) as “joint tenants” does not fall under a will. Upon the death of a joint tenant, his or her interest in that home automatically transfers to the joint owner(s). This arrangement is very common between spouses. However, it could cause problems, for example, in the event that a brother and a sister jointly own a multi-family cottage. If the brother wanted his ownership to be included in his will to be left to his spouse, the ownership must be changed to tenancy-in-common.
If drafted improperly, a will can accidentally disinherit a beneficiary or include unintended beneficiaries. Additionally, an improperly executed will can be deemed invalid. This can happen if the will is unsigned, there are improper or insufficient witnesses, or unclear wording, among others. If your will is deemed invalid in Ontario, your estate will be distributed as if you did not have a will, or in other words, in accordance with the intestate rules under the Succession Law Reform Act, 1990.
This article is intended only as general information and should not be relied on as legal advice.