FAQ

A properly drafted will is not just about determining who will inherit your assets. It also gives you an opportunity to appoint guardians for minor children, explain your funeral wishes and name an appropriate executor to handle your estate.

You’re never too young to make a will, as long as you’re over 18 years old and mentally capable. 

Even if you’ve yet to accumulate a huge amount of personal property or wealth, your loved ones will thank you for having something in writing about your estate and its disposal, should the worst ever happen.

It’s effectively up to the government what happens to your property, since Ontario’s Succession Law Reform Act sets strict rules for the distribution of assets on an intestacy. The deceased’s surviving spouse gets the first $350,000 from any estate under the law, with the remainder divided between the spouse and any surviving children. 

No. 

Even with the “guidance” of an online or old-fashioned paper DIY will kit, the short-term savings will be quickly wiped out when your beneficiaries end up in court, trying to disentangle your real intentions from the errors and omissions that inevitably arise without the benefit of legal advice.

A lawyer can help you avoid unnecessary probate fees and minimize the tax burden on your estate. And the more complex or valuable your assets are, the more essential it is to obtain professional help.

Most people pick a family member or trusted friend to serve as their executor, also known as the estate trustee. 

But it’s a tough job. Executors can expect to spend at least a year in the role, gathering financial information, signing forms, filing taxes, paying off debts and distributing assets, so identifying someone who is willing – as well as able – may be tougher than it sounds. 

If nobody among your friends and family fits the bill, it may be worth approaching a trust company to administer your estate instead.

This is a better idea in theory than it works in practice. 

Co-executors may appreciate support with their heavy workload, but they often end up clashing – especially if there’s a history of conflict or dysfunction in their relationship.

If you absolutely have to choose more than one executor, then I’d suggest making it an odd number, so that you can include a “majority rules” clause to break any deadlock.

No. Testamentary freedom is taken pretty seriously in Ontario and courts will not interfere lightly with the inheritance left by a testator to an adult child or any other non-dependant.

Still, you should think hard before leaving any person less than they expected (or cutting them out altogether) from your will, as it increases the chances of your estate descending into messy (and costly) litigation after you’re gone. 

At the very least, explain your reasons for the unequal treatment and consider giving disinherited children some advance warning, as this can take some of the heat out of the situation.

Ontario’s estates laws do not offer any automatic entitlements to a deceased’s common-law spouse – a fact that comes as a surprise to many testators. 

But if you want to prevent a fight between your beneficiaries after you’re gone, you should consider making some kind of provision for a common-law spouse, since Ontario’s Succession Law Reform Act allows dependants of the deceased to make a claim against the estate if they are inadequately provided for in the will. 

A lawyer can help you work out who else your estate plan should account for as a potential dependant. Depending on the case, a first or second spouse could qualify, as well as children from different relationships, or even a new partner’s children from a previous relationship.

More and more of our lives are lived online, but many people forget that when it comes to estate planning. There’s little legislative guidance on digital assets and each site has its own policies, so it can be challenging for your heirs to access your accounts after death. 

At Laredo Law, we prompt new clients to make a list of all their digital assets – including social media profiles, email accounts, online banking and even loyalty points – as well as the passwords associated with each.

If you’re thinking of including your pet in your will, It’s a good idea to allocate some money for the pet’s future living and medical expenses.

Technically speaking, instructions for the care of pets are typically “precatory,” which means they are not binding on the estate’s executors or trustees. So I would recommend that you speak not only to the planned caregiver, but also to whoever will be administering the estate, to make sure everyone is on board.

No. It’s up to you who and how much you tell about the contents of your will. 

Still, it’s often a good idea to be open with your executor and beneficiaries about the basic terms of your estate, so there are no big shocks once it kicks in – especially if you’re in a blended family situation or have children from a previous relationship. Setting realistic expectations can drastically cut the chances of an ugly family feud.

In my opinion, the best place for the original copy is with your lawyer, and my practice is generally to store wills for my clients.

Other options include the local courthouse or self-storage, but it can be difficult to strike the balance between a place that is safe, secure, and easily locatable by your chosen executor after your death, but not so accessible that it could be interfered with or destroyed by someone with bad intentions. 

Safety deposit boxes are generally not a great idea, because of the bank’s strict access rules following the death of the owner, which can slow the entire process for heirs.

Ideally, testators will revisit their estate plans every few years, to make sure that their chosen executor and beneficiaries still make sense. 

If you can’t commit yourself to that kind of frequency, then big life events or major relationship changes should also prompt an update to your will – think the birth of a child, marriage, divorce, or a major change in net worth.

A power of attorney is a document that gives someone else the authority to make decisions on your behalf. 

There are two types of POA under Ontario’s Substitute Decisions Act: attorneys for property, who are granted authority over the grantor’s property, including their finances and bank accounts; and attorneys for personal care, who take responsibility for decisions about the person’s health care broadly, including nutrition, shelter, clothing, hygiene, and safety.

You don’t have to pick the same person to perform both roles, but each document carries extraordinary power, so whoever you do choose to appoint should be someone you have absolute faith in.

You might not need a power of attorney right now, but that shouldn’t stop you getting one drafted. 

The biggest problem with POAs is that people don’t realize how much they need one until it’s too late. Since they are designed to kick in when a person becomes incapable of handling their own affairs, you must have one in place before disaster strikes. Once a person reaches the point of incapability, they can no longer sign a valid POA, which can leave family members in a very difficult position.

You can get around the timing issue by choosing when your POA takes effect – whether that’s immediately, the point at which you lack mental or physical capacity, or upon a specific date or event under what’s known as a “springing” POA.