Wills & Estate Lawyer In Oshawa
WHY IS A WILL NECESSARY?
The answer to this question is important, especially since the majority of people living in Ontario do not have wills. Simply put, the answer is:
- If you do not have a will, you cannot select the executor who will administer your estate. If you do not have a will, the person who will be in charge of your assets and in control of the needs of your family will be appointed by the court.
- If you do not have a will, you cannot choose who is to receive a benefit or gift from your estate. Without a will, provincial legislation dictates who will be your beneficiaries, and the people that you might have wanted to receive a gift will not inherit anything. This is especially important if you have a common law spouse or same-sex partner. Your partner may not be considered your spouse for division of your assets.
- If you do not have a will and your children are under 18, the children’s bequests will be paid to the court. The Court will hold the assets until the children attain age 18. Not only does this take the assets out of your control, the children will automatically receive their bequests once they turn 18, whether or not they are mature enough to manage the money or the assets. A will allows you to set the age children are to receive their bequests and provides the flexibility to set up trusts for children or to consider any special needs of family members.
- A properly written will may result in increased tax savings, both at the time of your death and following your death, which would not be available without a will.
At Thomas & Efraim we can assist you with all of your estate planning needs and the Wills and Estates lawyers at Thomas & Efraim pride themselves on giving our clients the attention they deserve in preparing these important documents.
All Wills and Estates services are provided on a flat fee basis, or pricing schedule can be found here.
Wills let you decide who manages your estate and who inherits your assets on your death. At Thomas & Efraim LLP we know this process can be complicated and confusing. We pride ourselves on our knowledge and ability to simplify the process. Our wills lawyers help you prepare your will, estate planning, setting up testamentary trusts, review your existing will, update a current will with a codicil, or answer any questions about wills. Our wills lawyers have the expertise to assist you.
In Ontario, when a person with real property or assets dies with a will, the Estate must apply for a Grant of Probate to establish the validity of the will. When probating an estate, our wills and estate lawyers will assist in all aspects of this complex and emotional time.
Certificate of Appointment (Intestate – Death Without a Will)
Like probate, a Certificate of Appointment determines who administers an estate and who inherits the estate when there is no will. The process is similar to probate and we are here to help you.
Estate planning lawyers help you prepare and plan for the future. While the adage that “nothing is certain but death and taxes” is true, it is often difficult for clients to think about and prepare for the future. The Estate Planning lawyers at Thomas & Efraim LLP are here to help you in a friendly, professional and comfortable way. We will work with you to make sure that all your estate planning needs are met at reasonable flat rate fees. Estate planning lawyers when you need them.
Estate Planning Legal Services Offered in Calgary
Our estate planning lawyers offer the following estate planning services:
- Creating estate (Testamentary) trusts
- Trust for minor Beneficiaries
- Tax planning
- Appointing guardians
- Preventing / Minimizing estate litigation
Every Estate is Different
Our Calgary estate planning lawyers understand that every estate is different. Estates differ not just in terms of the amount of assets, but the types of assets and the people involved. We treat each client as an individual and strive to ensure that your estate planning needs are met. Our estate planning lawyers will help, guide, inform and prepare you and your estate for the future.
What Does Estate Planning Do?
There are several aspects to estate planning in Ontario. Our estate planning lawyers will guide you through each aspect of setting up your estate. Our comprehensive, multi-step approach ensures that all your assets are accounted for and your beneficiaries are prepared for the future. We can prepare you and your estate for not just your passing, but ensure that your estate is prepared to make life easier for you while you are alive and well and for any potential loss of capacity.
More Than Just Estates: Convenience and Cost Savings
Our estate planning lawyers can work with our legal team to make sure that all aspects of your estate planning and ultimate estate administration are covered. As our law firm works as a team, if other areas of law are involved, you are not paying the costs associate with engaging two law firms. Due to the nature of estates, estate planning lawyers often work with:
- Real estate lawyers to deal with property held by the estate
- Corporate and/or employment lawyers to deal with managing and transitioning corporate assets
How Much Does Estate Planning Cost
Our estate planning law firm believes in your knowing what estate planning costs before you commit to use our services. Our estate planning lawyers bill most services on flat rate fees. Our transparency means that you can budget in advance and know you will not get a surprise invoice later.
The Cost of Failing to Prepare your Estate
Failing to prepare your estate, either with or without estate planning lawyers, can be costly. The Ontario Government suggests that everyone has some minimal estate planning in place. Without a comprehensive estate plan, you may be at risk for the following:
- Your estate may not go to your chosen beneficiaries
- Increased taxes
- Minors receiving substantial funds on turning 18
- Loss of or damage to businesses
- Estate fighting or litigation
- Increased cost of estate administration
- Poor management of estate assets
Intestacy or dying intestate is when a person dies without a valid will. This happens if there is no will, the will is not drafted or executed correctly, or the will cannot be found. In this case, someone needs to apply to the superior court for the power to administer the estate. Thomas & Efraim LLP are here to help you get through this difficult time.
Administering the Estate
When there is a will, the person who is in charge of the estate is called the executor or trustee. When a person dies intestate – dies with no will – a family member may apply to the courts to act as the estate administrator (this role can be referred to as the estate trustee). If the court grants a Certificate of Appointment, the administrator inventories the estate, pays out all the debts and then makes sure the beneficiaries receive what they should under intestacy laws. Ontario law when people die without a will is legislated by the Estates Administration Act and the Succession Law Reform Act.
If no immediate family member or close friend of the deceased can or will act as administrator, then the court may appoint the Public Trustee to undertake the task.
Who Gets the Estate When Someone Dies Without a Will?
The Estates Administration Act or Succession Law Reform Act in Ontario determines who will receive what if a person dies with no will. It is not true that the Province of Ontario will receive everything if there is no will unless there is absolutely no living relative of the person who died. Otherwise, depending on the family situation of the deceased, the estate may go to a spouse, children, parents, siblings, cousins, etc.
Problems When There Is No Will
Intestacy can create many problems. These include, but are not limited to, family fights over who gets the estate or administers the estate, children getting large sums of money or assets on turning 18, specific wishes of the deceased not being met, and more. The process and cost of getting a will is reasonable.
There is no set time frame for when a will should be reviewed. For most people rereading their will is something they should do every 2-5 years. This way they will know if there is something that they need to change in their last will and testament. People can do this on their own or with a lawyer. A will lawyer can check for will validity also. Any changes can then be made with a codicil or by a drafting a new will.
When Do You Need to Change Your Will?
The following are examples of when your will should be changed.
On the Birth of a Child:
You will need to make provisions for your child or children as beneficiaries. If you do not have trust provisions for minor children, these should also be added.
On the Birth of a Grandchild:
Many people wish to add grandchildren to their wills. It is also a good idea to have a trust provision for minors. You may also wish to add guardianship provisions in case you ever become the child’s legal guardian.
You Get Married:
Wills often need to be re-done on marriage. Once you get married a codicil may be used but there may be so many changes, that a new will be easier. In some places, marriage will void your will. In this case a codicil may not work. Failing to include a spouse, legal or common law, can lead to your will being challenged in court.
You Get Divorced:
In some places, such as Ontario, a divorce does not invalidate a will, rather the ex-spouse, if named as a Trustee or beneficiary is deemed to have predeceased. This can get complicated. Drafting a new will simplifies matters. Many people will want to change their will after divorce anyway.
Death of Someone Named in Your Will:
When someone named in your will as executor, personal representative, beneficiary or trustee passes away (or becomes to old, infirm or distant to act) then you will want to make a change to your will.
Major Change in Financial Situations:
If you have a major change in your financial situation you may want to change your will. This may be done for tax purposes, to give to a charity or to redistribute your wealth differently.
When Do I Need A New Will?
Codicils are effective for making smaller changes to wills. Using a codicil to change many parts of a will can become confusing and create uncertainty in the will. Never make a physical change on your actual, original will document itself. A lawyer can review your options with you as to the best choice for making changes or drafting a new will.
Getting Help From Probate Lawyers with the Application
Probate lawyers (also called estate lawyers) help you with the steps required to finalize an estate. Usually the executor or executrix of a will does this. During probate, the assets or property of someone who has died are given to the beneficiaries named in that person’s will. Probate lawyers make the probate application for you. Probate proves the validity of the will, confirms the last valid will and decides who controls the estate. Probate in Ontario gives everyone involved in the estate certainty that the last wishes are being followed. If there is no will, a similar but different process is followed.
The Estate Administration and Probate Process
The finalizing of an estate can be a long process. At a minimum, probating an estate can take three or four months. For complicated estates with many beneficiaries the process can take over a year. Until the superior court grants an order for probate, no one has the legal right to act for the estate. Probate protects the executor by getting permission / authorization to act on behalf of the estate. Executors are allowed to be paid for their work. Without taking all the proper legal steps the executor can be held personally liable. There are important things to know when dealing with the property of someone who has died.
Do I Need to Probate an Estate in Ontario?
We offer a no charge initial consultation for probating estates. We will let you know if probate is not required. Some of the factors to decide if an estate need probating is if there is land involved (and how it is held), the types of other assets held, where and how assets are held and the size of some assets like bank accounts.
The Cost of Probate Fees
As above, we do not charge for initial consultations and if no probate is required, you will not pay us anything after that first meeting. We charge a flat fee for probating and estate when acting for an estate during probate.
Getting Probate Help
The lawyers at Thomas & Efraim LLP can help you when a family member or loved one has passed away and you are executor for them. Contact us at any time.
How do you probate an estate in Ontario? With wills, probating estates or administering an intestate estate, the role of administering the estate falls to the executor, executrix, personal administrator or administrator. The title of the role will vary depending on if the deceased had a will or not. The general process is described below using the term executor.
What Role Does the Executor Play?
After making the funeral arrangements, the executor must locate the will. If there is no valid will, then the process proceeds as an intestate estate. You are not alone during the process. It can be emotional, complicated and time consuming. When faced with “how do you probate an estate” questions you may hire professionals, such as lawyers, real estate agents and accountants, to help properly administer the estate.
Dealing with the Assets of the Deceased
Next, the executor must notify all the various financial institutions of the deceased and locate all the assets that will form the estate. The executor must carefully value the assets of the estate. The executor must also determine all the debts of the estate. It is usually easier to administer the estate by opening a bank account in the name of the estate. Real property, including homes, have to be treated specifically. When selling the home of the deceased, it is important to know the process of selling homes in an estate.
Wills may list out specific beneficiaries. Other times it is necessary to determine who is a beneficiary. For example of the wills says “give to all my children”. The executor then locates all of the beneficiaries.
Probate Application / Application for Certificate of Administration
The next step is for the executor to apply to the courts for a grant of probate. This will confirm the role of that individual as executor. Completing probate offers protection to the executor while administering the estate. During this time is it important for the executor to protect the estate’s assets. This may mean physically securing them, getting insurance, managing investments or running a business.
Managing Trusts for Minor Children
With minor children beneficiaries, the executor may have to administer the estate until the assets inherited by them vest into their name. This may mean investing funds and / or distributing interest or capital from the estate’s account for education or day to day living expenses. The executor will work with the children’s guardians. In knowing how to probate an estate, this can be the part with the longest duration.
Legal Claims Against Estates
The executor must deal with any legal claims against the estate. The estate may pay for legal help during this process. Claims can come from left out relatives, spouses or former spouses, creditors to the deceased, dependents of the deceased, etc.
Distribution to the Beneficiaries and Accounting
The last step is a distribution of the estate’s assets to the beneficiaries. Beneficiaries may be names as a beneficiary of a specific bequest or gift or they may be the beneficiary of the residue of the estate. The residue is everything left that is given as a percentage to certain people. Once distributed, the executor must give a final accounting to all the beneficiaries and close out the estate. Any property held as a joint tenant does not enter the estate and is easily transferred by the surviving joint tenant.