So you need an estate trustee. Who better than a close relative or family friend who knows you well. Surely they have only your best interests at heart?
As experience can prove, someone you trust may not be the best person to manage your estate when you die.
Making a Simple (Not So Simple) Will
Neena made her older brother Amir her estate trustee. Her personal will was simple or so she thought. She owned a condo in Central Mississauga, a nail salon in Etobicoke and a Jack Russell terrier named Brad. Amir agreed and e-signed her handwritten will, drafted on his tablet using an electronic will form over a cafe latté at Starbucks. She emailed Amir a typed list of possessions to attach.
Amir had always been very protective of Neena and had suggested she draft a will. He was her only living relative in Ontario and understood the financial ins and outs of personal finance. His accountant had told him to make a will when he declared bankruptcy. Neena was sympathetic. Naturally, she left everything, including Brad, to him.
One more thing checked off life’s to do list.
How Not to Make a Will in Ontario
Hold on. Neena’s simple will was more complicated than that. A legal handwritten or holographic will is only accepted by an Ontario probate court if it is in your own handwriting. Neena’s electronic form and emailed attachment voided the will. Besides that, handwritten wills require only your signature. Having a witness sign a holographic will compromises it. Then there was the question of motive. Was Amir subtly coercing Neena into drafting a will?
When Beneficiaries Profit From Your Will
Amir was Neena’s sole estate trustee. Despite helping draft and witness the will, he was the only one with legal authority to manage and distribute her estate when she died. As sole beneficiary, he had full control of her financial assets and personal property.
Unless Neena left a copy with a family lawyer in Ontario or filed it with a court wills depository, no one but Amir would know she had a will. Amir might claim she died intestate (with no will) and apply to Ontario Superior Court of Justice to appoint him estate trustee without a will. That could make it difficult to challenge his estate decisions.
Making a Legal Handwritten Will in Ontario
Neena acted impulsively by making a quick will. She missed important steps in preparing her final will and testament. Taking a step back, the Ontario Succession Law Reform Act allowed Neena to make a holographic will, provided it was done without duress. Her e-document on Amir’s tablet was insufficient to prove she had deliberate or fixed intent to make him her beneficiary. Because she owned a business, Neena’s personal estate was also more complex than most. Someone would need to wind down the business or find a buyer, locate creditors, pay the debts, balance the books and file a final corporate income tax return.
How to Appoint Estate Trustees
Besides not having a valid will to show the court, Amir had declared bankruptcy in past. That alone could result in him being disallowed under the Ontario Estates Act when he applied to court for a certificate of appointment of estate trustee. That would leave the government to distribute Neena’s estate to her heirs. Neena would have been better off appointing a neutral third party as her estate representative — a Greater Toronto lawyer, trust company, accountant or other professional. Having a wills and estates lawyer prepare a will naming her estate trustees would have made everything perfectly legal.
Who Can be an Estate Executor in Ontario
Although appointing her brother seemed logical, probating an estate in Ontario is a major responsibility. Ideally, estate trustees should be reliable, financially responsible, mentally capable, know when to ask professionals such as accountants for help and live in Ontario. Non-Ontario residents are required to post an administration bond (from your assets) as security while your estate is being probated. Before you appoint a personal representative, ask yourself if they understand the many responsibilities it involves.
Four Steps to Appointing an Estate Trustee
If Neena was to do it over, she could appoint an estate executor in four easy steps:
- Decide how to dispose of her business, financial assets and personal possessions.
- Choose a good home for Brad.
- Make a legal personal will appointing her estate trustees.
- File the will in Ontario Superior Court of Justice and leave copies with Amir and her family lawyer.
Ensuring You Have a Valid Will
Your will is one of the most important documents you will ever make. Don’t skimp on legal advice when you need it most. A personal will starts at $199.99 and up at Axess Law. Our licensed lawyers in Toronto, Scarborough, Etobicoke, Mississauga, Vaughan and Ottawa would be glad to discuss your family situation.
Get Legal Advice on Wills and Estates
For legal advice on appointing estate trustees, call Axess Law, your flat fee Ontario lawyers. Make an appointment by dialing toll free to 1-877-552-9377 or 647-479-0118 in Toronto or use our online booking form. Lawyers are available 7 days a week, at times convenient for your schedule. We can meet in person, by phone or on a video conference call.
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