Planning for the future and securing your legacy is essential, not only for your own peace of mind but also for your loved ones. One of the most critical steps in this process is drafting a will. A will ensures that your assets are distributed according to your wishes after your death, and it designates someone to handle your affairs. If a loved one passes away without a will, the process of managing their estate becomes far more complicated. In this article, we will explore the importance of wills and probate in Ontario, how to draft a valid will, and what to do when a loved one has passed away.

What is a Will?

A will is a legal document that outlines how a person’s assets will be distributed after their death. It can also include instructions for the care of minor children, funeral arrangements, and the appointment of an executor—the person responsible for ensuring that the terms of the will are carried out.

In Ontario, the Wills Act governs the drafting of wills, and it specifies the requirements for a will to be legally valid. These requirements include that the will must be in writing, signed by the testator (the person making the will), and witnessed by at least two people who are not beneficiaries of the will.

Why is a Will Important?

1. Control Over Distribution of Assets: A will allows you to dictate how your estate will be distributed, ensuring your wishes are carried out exactly as intended. Without a will, Ontario’s laws of intestacy will determine how your property is divided, which may not align with your desires.
2. Designating a Guardian for Minor Children: If you have children under the age of 18, a will allows you to designate a guardian who will care for them in the event of your death though the appointment is limited to 90 days and ultimately it’s the court who decide upon the permanent guardian. However, the court does give weightage to parent's expressed wishes. This decision is crucial, and without a will, the courts will decide who becomes the guardian.
3. Minimizing Family Disputes: A clear and well-written will can prevent potential disagreements among family members over how your assets should be divided.
4. Choosing Your Executor: Your will allows you to appoint an executor, someone responsible for administering your estate, including paying off any debts and distributing your assets according to your wishes.

Key Considerations When Drafting a Will

• Clarity and Precision: It’s important to be as clear and specific as possible about your wishes, including detailed descriptions of assets and how they should be divided.
• Choosing the Right Executor: Select someone trustworthy and responsible to carry out your wishes. This person will have significant duties, including managing your finances, filing taxes, and ensuring that all terms of your will are followed.
• Witnesses: Ontario law requires that a will be witnessed by at least two individuals who are not beneficiaries. These witnesses must also sign the will, affirming that they witnessed the testator signing the document.
• Reviewing and Updating Your Will: It’s essential to review and update your will regularly, especially after significant life changes such as marriage, divorce, the birth of children, or the acquisition of significant assets.

What is Probate?

Probate is the legal process that occurs after someone’s death to validate their will, settle debts, and distribute assets. In Ontario, probate is required if the deceased person’s estate includes real property (such as a house) or if there are substantial assets that need to be divided. The probate process involves the following steps:

1. Filing the Will with the Court: The executor of the estate must file the will with the court to begin the probate process. This includes submitting an application for a certificate of appointment of estate trustee.
2. Paying Debts and Taxes: The estate must pay any outstanding debts, including funeral costs, taxes, and any other liabilities before distributing assets to beneficiaries.
3. Distribution of Assets: Once debts and taxes are settled, the remaining assets are distributed according to the instructions in the will. This may include transferring property, liquidating assets, and making payments to beneficiaries.
4. Finalizing the Estate: After all assets have been distributed, the executor files a final accounting with the court, and the estate is formally closed.

Why is Probate Important?

Probate ensures that the deceased’s wishes are carried out legally and that all debts and taxes are settled before assets are distributed. It provides an official record of the estate administration process, protecting the interests of both beneficiaries and creditors.

Common Mistakes in Wills and Estate Planning

1. Lack of Updates: Life events such as marriage, divorce, or the birth of children can change your wishes. Failing to update your will after such events can lead to unintended consequences.
2. Ambiguities in the Will: If the language in the will is unclear or vague, it could lead to disputes among beneficiaries. For instance, terms like “my personal property” or “my estate” need to be clearly defined.
3. Not Appointing an Alternate Executor: Life is unpredictable, and your chosen executor may not be available or able to fulfill the role. It’s wise to name a backup executor in case your first choice cannot serve.

How to Ensure Your Will is Legally Valid

To ensure your will is legally valid and enforceable:

• Ensure Compliance with Legal Formalities: In Ontario, a will must be written, signed by the testator, and witnessed by at least two non-beneficiary individuals.
• Seek Legal Advice: Consulting a lawyer when drafting your will ensures that it meets all legal requirements and that your wishes are properly articulated and understood.

The Role of Estate Trustees and Executors

An estate trustee (often called an executor) is responsible for managing the deceased’s estate, ensuring that all debts are settled, taxes are paid, and assets are distributed as per the instructions in the will. Choosing an executor is a significant decision, as this person will have authority over your estate and must act in the best interest of your beneficiaries.

An executor must also keep detailed records of all estate transactions and may be required to file estate tax returns on behalf of the deceased. Executors have a fiduciary duty to act honestly and with the utmost care and loyalty.

Having a will and understanding the probate process are essential for securing your legacy and protecting your loved ones after your death. A well-drafted will ensures that your wishes are respected, while the probate process ensures that your estate is handled legally and efficiently. At LexCounsel, we provide expert legal services in will drafting and estate planning, helping you navigate these complex legal matters with clarity and confidence. Whether you are planning for the future or managing the estate of a loved one, it is essential to seek legal guidance to ensure that everything is handled properly.

If you need help with creating or updating your will, applying for probate, or ensuring your estate is administered according to your wishes, LexCounsel is here to guide you through the process. Contact us today to secure your legacy and ensure your estate planning needs are handled with care and expertise.