Probate in Canada – What it is, what it costs, how to reduce fees.

Must my Will go through probate?

To understand whether or not your Will needs to go through the probate process, you have to understand what happens after you have died.

Hopefully you have written a Last Will and Testament.

In your Will you name an Executor. This is the person that you entrust to gather and secure your assets. Your Executor then has to distribute the assets according to the instructions in your Will.

The Executor must collect up everything you own, keep it safe and secure until everything has been collected, and then pass these possessions and financial assets to your beneficiaries.

Let us imagine a scenario.

Imagine your Executor going to your bank and presenting them with the Will. They explain to the bank that you have died and they show your Will to the cashier. The Will names your Executor. The person you have named shows their ID and they request the contents of the bank account. This person could even be one of your own children. Continue reading

The specific grounds to challenge a Will in Canada

How to Contest or Challenge a Will

For many of us the loss of a family member is a very upsetting and stressful time, and we are not always thinking clearly during this emotional state. As a result, there are often times when an estate is distributed but some beneficiaries feel that it has not been done in accordance with the Will or that they have still missed out in some way. This isn’t uncommon and as any estate lawyer will tell you, a large part of their work involves resolving estate disputes between family members and other beneficiaries.

But if you are tempted to challenge a Will, be aware that there are specific reasons why you can challenge a Will. Although you may feel cheated, this may not alone be sufficient grounds for contesting a Will.

Some General Considerations

If you believe that you have not received a sufficient benefit under a Will and you fit certain criteria, you may be able to challenge a Will. Contesting a Will means applying to the court to have the Will, or parts of the Will, deemed invalid. While there may be a good reason you were left out, there may also be other possibilities.

Since contesting a Will is expensive and time-consuming, it is a good idea to get legal advice before you proceed. In addition, contesting a Will requires formal steps and procedures, and will only be successful if you can provide evidence to support your claim. Because the maker of the Will is deceased, any statements that you allege the deceased said, must be corroborated or confirmed by a witness. Depending on the jurisdiction, you may have to go to mediation and try to resolve the issues.  If the case is not settled at mediation, it will then go to trial.
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It doesn’t matter how young you are, you need a Will.

I’m young – do I need a Will?

You need a Will. In fact, there is never a circumstance where planning to not have a Will is a good idea. Dying without a Will is not a strategy, no matter how old or young you may be, you need a Will.

On a daily basis not many of us like to think about our inevitable death. It’s morbid and a subject that most of us don’t want to pay much attention to. Like going to the dentist for a root canal or having that screening at the hospital, there are some uncomfortable scenarios that we put off for as long as possible. Writing a Will should not be one of them.

But the thought of going over your possessions and paying a lawyer can be too much for some people. However, there comes a time when we need to face the cold hard reality that we won’t live forever and having a Will really isn’t for your benefit, but you write a Will for your loved ones. Granted, creating a Will may not be fun, and when you’re young there are a million and one things you would rather do but it’s actually not such a hard thing to do once you get over the mental hump. And you may actually learn something along the way.

To help you see the benefits of having a Will we have outlined why you’re (almost) never too young, and no matter the age, you need a Will.No matter the age, you need a Will

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Why do most people avoid writing a Will?

Why Do Most People Avoid Writing a Will?

Why do most people avoid writing a Will? Recent headlines suggest that people can avoid paying taxes for a considerable period. You just have to know your way around the system. However, none of us can cheat death forever.

“In this world nothing can be said to be certain, except death and taxes”

Benjamin Franklin

Immortality is not an option. We all know that one day our time will come. Yet most of us just don’t want to think about it. This is probably one of the most common reasons for not writing a Will.

A Will allows you to decide what happens to your assets and even your children if you die. So why is it that less than half of the adult population of Canada have made a Will? It is an easy process which doesn’t cost much in terms of time or money.

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Guardian for your children – How to name a guardian in your Will.

How to Choose a Guardian for Your Children

One of the most important things which you need to consider when you are making your Will is how to choose a guardian. They will take care of your minor children in the event of your death. This really isn’t something that anyone ever wants to think about, but it is one of the most important decisions that you need to make. No one likes to think of their own mortality. However, making a Will and appointing a guardian is one of the most caring things that you can do for your minor children.

If you do not choose a guardian for your children and both parents die, the court will have to appoint one. This will usually be a willing volunteer. However, you really don’t want to leave something so incredibly important to chance. A judge can appoint whoever they want to. This person could be your worst nightmare, but a judge may have of way of knowing that if you haven’t made your wishes clear. Continue reading

Digital assets in your Last Will and Testament – you need a plan.

As we spend more time online, our social, sentimental, and financial assets have begun to migrate online as well. Collectively, we have come to call these items, your digital assets.

Unfortunately, people all too frequently neglect the digital component when they write a Will. You probably haven’t considered creating a plan for your Facebook, LinkedIn or Twitter accounts. Maybe you have recently experienced the loss of a friend and seen first hand the mis-management of online accounts for people who are no longer alive, I know I have. Sadly, three of my ex-colleagues have died, and every year, LinkedIn still prompts me to congratulate them on their work anniversary.

But there is much more to digital assets than your social accounts. Some of these assets simply need to be managed, some need named beneficiaries, and some have real monetary value and should be included as part of your estate.

 

Your Digital Assets – what are they?

You can divide the three most common forms of digital assets into three categories: social, sentimental, and financial digital assets. You may have a plan for your social assets, but having a comprehensive plan for your sentimental and financial assets is probably more important. Continue reading

The Canadian Will Kit – and the evolution of Will services

Many of us remember the TV ads for the Canadian Will Kit. It later became the Complete Canadian estate planning kit. It’s been over a decade since those ads ran on TV and Radio, and to this day, we still receive calls from people looking for one.

Unfortunately, these kits became synonymous with “writing your own Will”. The kits were bad, the Wills that they created caused many problems, and so people still think that writing your own Will is a bad idea.

 

The common criticisms of “boilerplate” Wills like the Canadian Will Kit, and “one-size fits all” kits are still trotted out by lawyers advising people against writing their own Wills. But these criticisms are woefully out of date, and simply no longer apply to online Will services like the one at LegalWills.ca. Continue reading

Six consequences of dying intestate in Canada

Dying intestate means that you have died without a Will.

dying intestate

I’m not sure that anybody plans to die without a Will. After all, most people don’t plan to die. But it happens. In fact, the vast majority of Canadian adults do not have a Will in place, and most of these people think that they will probably have plenty of opportunities to write one at some time in the future.

Dying intestate…who does that?

Amy Winehouse, Barry White, Jimi Hendrix, Sonny Bono and Bob Marley would make a terrific band. However, what brings them together in this article is that they all suffered the ignominy of dying intestate.

But you don’t have to be young with a rock and roll lifestyle to end up dying without a Will. Roman Blum was 97 years old with an estate valued at $40M, he died without a Will and and incredibly with no heirs. His entire fortune in this case, was destined for the government coffers. Continue reading

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Customer question of the day – updating a Will

Hello, I am trying to seek additional information regarding updating a Will . My question is , every time I update or change my will, do I need to go after the witness every time to re sign? How do I go about changing, updating without having to get them re signed. Thanks.

There is no way of updating a Will without having witnesses sign the update. There are only three ways to update your Will;

Updating a Will Continue reading

Lawyers and their egregious charges

CBC’s Marketplace recently featured a special – trying to find the most shocking fees charged by lawyers in Canada.

 

The banks and airlines featured prevalently in the discussion, but so did lawyers. People seemed to be incensed by the nickel-and-diming billing practices and when it came to voting for the 5 most egregious fees, one particular lawyer was included.

One of the most ridiculous submissions takes nickel-and-diming to a new level. One man complained of being charged precise amounts for every office supply his lawyer used.

“[I was] charged separately for staples ($0.07 each) and paperclips ($0.12 each) on my legal bill for doing up a will.”

It’s important to read this carefully. The lawyer wasn’t charging for the staples and paperclips in the Will, no, they were charging for the staples and paperclips used on the bill that was prepared for creating the Will !!

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Ten myths about a Canadian Last Will and Testament

Having watched families fight over the estate and end up not speaking to each other for the rest of their lives, I can tell you first hand that leaving this world without making a plan for what’s in your estate is one of the worst thing you could do for your loved ones.

Over the Thanksgiving weekend, the CBC led their business section with an article on writing a Canadian Last Will and Testament and suggested that you should discuss with your children exactly how you were planning to divide your estate.

 

There were some great comments on the article from people who were living the nightmare of administering an estate, some estates had a Will involved and some didn’t. Problems arose with children fighting over particular bequests, Executors were not following the legal procedures, aged parents were being forced to change their Wills in the advanced years. What struck me though was the level of misunderstanding of estate planning law from the general public. In a total of 200 comments, I have picked out 10 terrible misconceptions that people have taken the time to submit in response to the article. The lesson here is do not take legal advice from a comment forum. Continue reading

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How I wrote my Canadian Will in five minutes. And you can too.

At LegalWills.ca we claim that you can create a well-drafted Canadian Will in as little as 20 minutes. Clearly, there are some important decisions to be made, and it’s not something that should be written hastily, but if you have a straightforward situation and you know how you want your estate to be distributed, it really shouldn’t take you very long to prepare your Will.

To illustrate this, in the following video I create my Canadian Will, or more specifically my Ontario legal Will, in about 5 minutes.

Video transcript

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Six good reasons to prepare an online Will

Is it possible to get a will written without a lawyer? What is an online Will?

We saw this question recently posted on Quora and we were a little surprised by the misinformation provided in the answers. They included the tired old analogies to “you wouldn’t remove your own appendix, so you shouldn’t prepare your own Will” (the two tasks are nothing close to comparable), and also a rather surprising answer from a lawyer who claimed “In non-emergency situations, you must get it done through a lawyer.” which is absolute nonsense.

Online Will

 

I would like to provide some reasons why it would actually be advantageous to prepare a Will without a lawyer, but first some clarification on the term “online Will”

What is an “online Will” service

There is no such thing as an online Will. A Will has to be printed, signed and witnessed in order to be made legal. Online, scanned or digitized versions of a Will are not legal documents. Any service that offers to store your Will online or in the cloud are misrepresenting what they can do because based on current law in Canada, a copy of a Will stored in the cloud cannot be probated. Our partner website that allows you to write your own Will in the US recently published a blog post explaining this. So when we talk about an online Will service, we are really talking about an Will service that is online. Once you have stepped through the service, the document must be printed, signed and witnessed to be made into a legal Last Will and Testament. Continue reading

Why we don’t support Québec Wills

I don’t get it….you say you are Canadian Legal Wills, but you don’t support Québec. Québec is a part of Canada you know…

Whenever we receive any kind of feedback, we always do everything we can to address the issue, but the support of Québec Wills is a really tricky challenge.

Quebec Wills

Background to Québec Law on Wills

To provide some background, Québec law was established around the middle of the 17th century. Louis XIV decreed that the laws of Québec would be based on the laws of Paris which were a variant of “civil law”. Although the laws changed a little in the years that followed, the Québec Act of 1774 reinstated the Civil law system for the Province of Québec even though it had since been placed under British rule. When Canada was officially created in 1867 all Provinces adopted the British “Common law” of English origin while Québec retained their “Civil Law” derived from the Napoleonic code.

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Dying without a Will in Canada

If a Canadian dies without a Will, they have left a bit of a mess for their loved ones, and sadly missed out on an opportunity to distribute their assets in a meaningful way. Instead of recognizing friends or organizations that have made an impact on their life, they have left all of the planning to their Provincial government who have already decided how the assets will be divided. It may come as a surprise however, to learn that every Province is different and that there are some very inaccurate assumptions. In this post we will run through a few scenarios, and highlight some Provincial differences.

 

Let us start with the most common misconception;

If you are married, then your entire estate will go to your spouse.

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Do I need a Will?

The statistics still show that over 65% of adults in Canada do not have an up-to-date Last Will and Testament – even though most people know that they need a Will. Once in a while, somebody will tell us that they don’t need a Last Will and Testament – yet. Here are the top ten excuses for not having a Will, and we will explain why everybody should take the time to prepare their Will write now.

Last Will and Testament

1. Everything is going to my spouse whether I have a Will or not

In reality, there is not a single Province in Canada in which you can guarantee that this will be the case. Without a Will, the distribution of your estate is determined by “intestate law”, which follows a rather complicated flow depending on your family situation. What makes it more complicated is that no two Provinces are the same. In most Provinces, if you are married with children, your spouse will not receive the entire estate. Continue reading