Toronto Wills and Estates Lawyers
Wills, Powers of Attorney, Probate and Estate Administration in Ontario
Estate planning helps individuals document their wishes concerning their property, beneficiaries and personal affairs.
At Capulli Law LLP, we assist individuals and families in Toronto and the Greater Toronto Area with straightforward wills, powers of attorney, probate applications and estate administration matters.
Properly prepared estate planning documents can help reduce uncertainty and provide instructions to the people responsible for managing your affairs.
Preparing a Will in Ontario
A will is a legal document that sets out how a person’s estate is to be administered and distributed after death.
A will can identify beneficiaries, appoint an estate trustee and provide instructions concerning the distribution of assets forming part of the estate.
Choosing an Estate Trustee
An estate trustee is the person responsible for administering an estate.
Responsibilities may include identifying assets, paying debts and taxes, communicating with beneficiaries, dealing with property and distributing estate assets.
A person preparing a will should choose someone capable of performing these responsibilities and should consider appointing an alternate.
Identifying Beneficiaries
A will can name individuals or organizations that are to receive estate assets.
The wording should clearly identify beneficiaries and explain what happens if a beneficiary dies before the person making the will.
Distributing Estate Assets
A will can provide for specific gifts and the distribution of the residue of an estate.
The residue generally refers to estate assets remaining after payment of debts, expenses, taxes and any specific gifts.
The distribution provisions should be drafted to reflect the individual’s intentions and circumstances.
Choosing an Estate Trustee
An estate trustee is the person responsible for administering an estate.
Responsibilities may include identifying assets, paying debts and taxes, communicating with beneficiaries, dealing with property and distributing estate assets.
A person preparing a will should choose someone capable of performing these responsibilities and should consider appointing an alternate.
Identifying Beneficiaries
A will can name individuals or organizations that are to receive estate assets.
The wording should clearly identify beneficiaries and explain what happens if a beneficiary dies before the person making the will.
Distributing Estate Assets
A will can provide for specific gifts and the distribution of the residue of an estate.
The residue generally refers to estate assets remaining after payment of debts, expenses, taxes and any specific gifts.
The distribution provisions should be drafted to reflect the individual’s intentions and circumstances.
Guardianship Considerations
Parents of minor children may use their wills to express wishes regarding the care of their children.
Such wishes are important, but a will does not give parents an unrestricted ability to conclusively determine guardianship regardless of applicable law or court authority.
Why Proper Execution Matters
Ontario law imposes requirements concerning the validity and execution of wills.
Failure to comply with applicable requirements may create disputes or uncertainty, although courts have certain statutory powers in appropriate circumstances.
Legal assistance can help ensure the will is prepared and executed in a manner intended to comply with Ontario law.
Powers of Attorney in Ontario
A power of attorney allows an individual to appoint another person to make certain decisions or manage specified affairs within the authority granted.
Ontario recognizes different powers of attorney for property and personal care.
Continuing Power of Attorney for Property
A continuing power of attorney for property can authorize an appointed attorney to manage financial and property matters.
Depending on its wording and legal effect, this may include dealing with bank accounts, paying expenses, managing investments and conducting property transactions.
A continuing power of attorney may remain effective during the grantor’s mental incapacity if properly established.
Because the authority can be substantial, it is important to choose an appropriate attorney and consider safeguards.
Power of Attorney for Personal Care
A power of attorney for personal care can authorize a person to make certain personal care decisions when the grantor lacks the required capacity to make those decisions.
The authority can involve matters such as health care, nutrition, shelter, clothing, hygiene and safety, subject to applicable legislation.
Continuing Power of Attorney for Property
A continuing power of attorney for property can authorize an appointed attorney to manage financial and property matters.
Depending on its wording and legal effect, this may include dealing with bank accounts, paying expenses, managing investments and conducting property transactions.
A continuing power of attorney may remain effective during the grantor’s mental incapacity if properly established.
Because the authority can be substantial, it is important to choose an appropriate attorney and consider safeguards.
Power of Attorney for Personal Care
A power of attorney for personal care can authorize a person to make certain personal care decisions when the grantor lacks the required capacity to make those decisions.
The authority can involve matters such as health care, nutrition, shelter, clothing, hygiene and safety, subject to applicable legislation.
Choosing an Attorney
An attorney under a power of attorney should be trustworthy, capable of handling the responsibilities and willing to act.
Appointing multiple attorneys may create additional considerations concerning whether they must act jointly or may act separately.
When Should Powers of Attorney Be Reviewed?
Powers of attorney should be reviewed when circumstances change, particularly following death, incapacity or loss of trust involving an appointed attorney.
Probate Applications in Ontario
Probate is commonly used to describe the court process through which an estate trustee obtains a Certificate of Appointment of Estate Trustee.
The certificate establishes or confirms the applicant’s authority to administer the estate, as appropriate.
When Is Probate Required?
Not every estate requires a probate application.
Whether probate is necessary depends on the nature of the assets, how they are owned, whether there is a will and the requirements of institutions or parties dealing with the estate.
For example, a financial institution may require a Certificate of Appointment before releasing substantial estate assets.
A transfer or sale of real estate owned by a deceased person may also require probate, subject to applicable land registration rules and exceptions.
What Documents Are Required?
A probate application may require the original will and codicils, proof of death, prescribed court forms, information concerning estate assets and beneficiaries, and supporting affidavits or consents.
The exact requirements depend on the type of application.
When Is Probate Required?
Not every estate requires a probate application.
Whether probate is necessary depends on the nature of the assets, how they are owned, whether there is a will and the requirements of institutions or parties dealing with the estate.
For example, a financial institution may require a Certificate of Appointment before releasing substantial estate assets.
A transfer or sale of real estate owned by a deceased person may also require probate, subject to applicable land registration rules and exceptions.
What Documents Are Required?
A probate application may require the original will and codicils, proof of death, prescribed court forms, information concerning estate assets and beneficiaries, and supporting affidavits or consents.
The exact requirements depend on the type of application.
Estate Administration Tax
Ontario imposes Estate Administration Tax when an estate certificate is issued, subject to applicable exemptions and valuation rules.
For applications under the current framework, no Estate Administration Tax is payable on the first $50,000 of estate value.
For estate value above $50,000, the general tax is $15 per $1,000, or part thereof, above that threshold.
For example, for an estate valued at $500,000, the general tax calculation is:
$500,000 − $50,000 = $450,000
$450,000 ÷ $1,000 × $15 = $6,750
The estate’s actual tax liability depends on the assets and values required to be included under the applicable rules.
Estate Administration
Administering an estate involves more than distributing money to beneficiaries.
An estate trustee must identify and safeguard estate assets, address debts and expenses, comply with applicable legal duties and distribute property in accordance with the will or intestacy legislation.
Identifying Estate Assets
Assets may include real estate, bank accounts, investments, vehicles, personal property and other interests.
Some assets may pass outside the estate through survivorship or beneficiary designations, depending on their legal and beneficial ownership and applicable law.
Paying Debts and Taxes
An estate trustee must consider outstanding debts, expenses and applicable tax obligations before distributing assets.
Premature distribution can expose the estate trustee to personal liability in some circumstances.
Distributing the Estate
Following completion of necessary administration, remaining assets can be distributed to the beneficiaries entitled to receive them.
Estate trustees should maintain appropriate records and accounts of their administration.
When Should You Update Your Will?
A will should be reviewed periodically and following significant life changes.
Identifying Estate Assets
Assets may include real estate, bank accounts, investments, vehicles, personal property and other interests.
Some assets may pass outside the estate through survivorship or beneficiary designations, depending on their legal and beneficial ownership and applicable law.
Paying Debts and Taxes
An estate trustee must consider outstanding debts, expenses and applicable tax obligations before distributing assets.
Premature distribution can expose the estate trustee to personal liability in some circumstances.
Distributing the Estate
Following completion of necessary administration, remaining assets can be distributed to the beneficiaries entitled to receive them.
Estate trustees should maintain appropriate records and accounts of their administration.
When Should You Update Your Will?
A will should be reviewed periodically and following significant life changes.
Marriage
In Ontario, marriage no longer automatically revokes a will under the statutory changes that took effect January 1, 2022.
However, marriage can affect estate planning objectives and should prompt a review of existing documents.
Separation and Divorce
Separation and divorce may affect certain gifts or appointments involving a spouse or former spouse under Ontario legislation.
The outcome depends on the circumstances and applicable statutory provisions.
Children and Grandchildren
The birth or adoption of children or grandchildren may justify changes to beneficiaries, distribution provisions or guardianship wishes.
Changes in Assets
Purchasing real estate, selling a business, acquiring investments or receiving an inheritance may affect how an estate should be distributed
Death of a Beneficiary or Estate Trustee
If a beneficiary or appointed estate trustee dies, the will should be reviewed to determine whether its alternate provisions still reflect the testator’s intentions.
Common Estate Planning Mistakes
Not Having a Will
When someone dies without a valid will, Ontario’s intestacy rules generally determine who receives estate property.
The distribution may differ significantly from what the deceased person would have wanted.
Assuming Joint Ownership Always Resolves Estate Issues
Joint ownership may involve rights of survivorship, but the beneficial ownership of property can be disputed.
This can be particularly important where a parent places an adult child on title or adds a child to a bank account.
Failing to Update Beneficiary Designations
Beneficiary designations on insurance policies, registered accounts and other assets should be reviewed as part of estate planning.
Choosing an Inappropriate Estate Trustee
An estate trustee must be able to manage financial, legal and administrative responsibilities.
A poorly chosen trustee may create delays, expenses and family disputes.
Common Estate Planning Mistakes
Not Having a Will
When someone dies without a valid will, Ontario’s intestacy rules generally determine who receives estate property.
The distribution may differ significantly from what the deceased person would have wanted.
Assuming Joint Ownership Always Resolves Estate Issues
Joint ownership may involve rights of survivorship, but the beneficial ownership of property can be disputed.
This can be particularly important where a parent places an adult child on title or adds a child to a bank account.
Failing to Update Beneficiary Designations
Beneficiary designations on insurance policies, registered accounts and other assets should be reviewed as part of estate planning.
Choosing an Inappropriate Estate Trustee
An estate trustee must be able to manage financial, legal and administrative responsibilities.
A poorly chosen trustee may create delays, expenses and family disputes.
Frequently Asked Questions
Do I need a lawyer to prepare a will in Ontario?
Ontario law does not require every will to be prepared by a lawyer.
However, legal assistance can help ensure the will complies with applicable requirements, clearly expresses the individual’s wishes and addresses potential issues concerning beneficiaries, ownership and administration.
What happens if someone dies without a will?
The estate is distributed according to Ontario’s intestacy legislation, subject to applicable family, dependency and other rights.
A person may need to apply to be appointed estate trustee before dealing with estate property.
Does every estate require probate?
No. Probate requirements depend on the estate’s assets, ownership arrangements and the documentation required to deal with those assets.
What is the difference between a will and a power of attorney?
A will primarily governs estate administration and distribution after death.
A power of attorney authorizes certain decisions or actions during the grantor’s lifetime and ordinarily ceases to operate upon death.
Can a jointly owned home pass outside an estate?
Potentially, yes. Property held in a genuine joint tenancy with a right of survivorship may pass to the surviving joint tenant.
However, beneficial ownership, trust principles and other circumstances may affect the ultimate entitlement.
How much does probate cost in Ontario?
The cost may include Estate Administration Tax, court-related expenses, legal fees and other administration costs.
The tax is generally calculated using the statutory estate valuation rules, with the first $50,000 exempt and $15 per $1,000 or part thereof above that amount.