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WILLS

A Will is defined as a person’s declaration, or set of instructions, on how they wish their property to be disposed of after their death. It is revocable throughout the lifetime of the testator. It is important to check with the document and Will laws of your Province.

Another version of a Will is a Living Will. One variation of the Living Will consists of permission given to another person, authorizing future consent to medical treatment at any time when the person giving the authorization is no longer capable of giving such consent, also referred to as “Durable Power of Attorney for advanced care directive”.

PROBATE

Last Will & TestamentThe purpose of the process of ‘probate’ is to determine the validity of a Will and ensure the correct administration of an estate. The surrogate or probate court of the particular province issues certificates of probate to recognize that the Will has been proved and is registered, and that the distribution of the estate can be executed. Any titled property owned by the deceased must go through probate before it can be sold, transferred, exchanged, or given away. Non-titled items that are part of an estate do not usually go through probate.

Common items having title (showing distinct evidence of ownership):

  • Real estate
  • Vehicles
  • Investments such as Stocks and Bonds
  • Savings and checking accounts


A Will must be drawn carefully and accurately, causing no confusion to occur when the deceased person’s estate is divided.

CODICILS
A Codicil consists of any change(s) made to the existing Will without re-writing the complete Will. All Codicils must be attached to the Will as a group, and MUST ALWAYS be dated and numbered in order to properly indicate the intention of the person who wrote the Will.

EXECUTOR

An Executor is the person chosen by the decedent to carry out the instructions of their Will. There can be more than one person named, or an alternative person if the first executor named cannot or will not agree to serve as the executor.

If there is no Will, there will be no Executor, in which case, the court appoints someone to handle the estate and affairs during probate; that person is referred to as the “Administrator of the Estate”. The responsibilities of your chosen Executor(s), or the court appointed Administrator, typically include:

  • Arranging for sale of assets
  • Closing of all accounts
  • Liquidating insurance
  • Paying outstanding debts
  • Filing appropriate income tax returns for the deceased
  • Transferring possessions and gifts to beneficiaries
  • Applying for death benefits due from the Canada Pension Plan

General duties of the lawyer or notary, who will deal with your Will, typically include:

  • Transferring title of property to the surviving tenant or heir
  • Obtaining release forms from beneficiaries to indicate their receipt of inherited items
  • Executing a Power of Attorney to transfer investments owned by the deceased
  • Overseeing payment of compensation fees to executors or administrators
  • Assisting with the filing of a “passing of estate accounts” document, if the estate is large. (This is a report to the court on all receipts and disbursements during the closing of the estate issue).

If your Will names specific heirs but fails to name justifiable others, those not named may be entitled to part of your estate. It is important to be very specific in your Will of the recipients of your property. The laws in each Province vary. Once the court has considered all forms and documents, a Letters Probate form will be issued. The court retains the original copy, and Notarial copies will be prepared for those who have need of them, each with an attached Notarial Certificate.

Whether you write your own Will, or you have a lawyer do it for you, both will be treated in the same way, having to go through probate, with a lawyer involved in its execution. You will save yourself the lawyer’s fee by doing it yourself, but if you have the slightest doubt, you should consult a lawyer. BE VERY SPECIFIC AND SURE ABOUT WHAT YOU WISH - WRITE IT DOWN CLEARLY IN YOUR WILL.

For lawyer prepared Will documents go to www.legalwills.ca.

 

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