Your Will & Estate Questions; Answered.

Ask, “If I die tomorrow, who do I want to inherit my stuff?” Without a Will, you have no say; the government decides who gets what, which may include smarmy relatives, even an ex-spouse.

Cost is no longer an issue with reputable online Wills kits charging less than $100 per document. If your estate is more complex, invest in a reputable estate lawyer. Short term pain for long term gain.

Delays and Higher Costs 

In the absence of a valid Will, settling your estate may take years longer.

Your family will need to hire a lawyer to apply to the Court for “Letters of Administration”, which take the place of a Will. Lawyers charge at least $300/hour for this work, and, at those rates, they’re in no hurry to get the job done quickly. Not how you want your hard-earned savings spent!

The Court issue “Letters of Administration”, appointing a “estate administrator”, who does the same job as the executor of your choosing, if you had a Will. If a family member is not available, the court may appoint a trust company, who charges similar fees to lawyers.

Government rules will determine how your assets are divided amongst family members; not of your choosing. Shares of minor children will be held by a Public Trustee and distributed to the child, in full, when they reach legal age, which could be as young as 18.

Whomever gets appointed must start from scratch to determine who’s involved, what you own, what you owe and where everyone, everything can be found, which takes extra months or years.

Without a Will, your estate may face a higher tax bill and higher accounting fees.

It all adds up to more complexity, more time, more fighting, more legal fees, and less money for beneficiaries who are not of your choosing. Get a Will and enjoy enduring peace of mind!

A Will is the Tip of the Iceberg

Equally important to having a Will is being organized before tragedy strikes so your executor knows who and what’s involved. Visit us at www.quickestate.ca for more useful information.

Today, it is common for people to use Wills Kits to create their own formal Wills to reduce legal costs. The danger with this practice is that if the Will is not executed properly, when it comes to probating the Will, the Court may declare it invalid and deem that the deceased tied died without a valid Will (“intestate”).

In the case of intestacy, the assets of the deceased are distributed to surviving family members in accordance with provincial or state laws rather than in accordance with the wishes of the deceased. Relatives, who the deceased did not want to get any money, may suddenly benefit.

In the case of intestacy, assets of minor children may be placed in the hands of a public trustee or guardian and distributed, in full, as soon as the children reach legal age: when they may be ill equipped to manage a large sum of money.

A valid Will allows for the creation of trusts that stage in distributions over several years, as the child enters adult hood and learns how to manage money.

Dying without a valid Will also tends to create a lot of friction amongst family members who may not get what they expected.

A valid Will is one of the most important documents you’ll create in your lifetime. Invest a few dollars with an experienced estate lawyer to ensure it’s done properly.

The legal term for dying without a valid Will is “dying intestate”. The word “intestacy” means that the deceased died without a valid Will.

A formal Will is typewritten and formally executed, usually by a lawyer.

There are specific rules of execution for formal Wills and codicils that may vary amongst jurisdictions. Most commonly, the deceased must sign at the end of the Will and initial each page of the document in the presence of two competent witnesses. Once the deceased has signed and initialed each page, the two witnesses must also sign at the end of the document and initial each page.

A simple Will provides for immediate distribution of all the deceased’s net assets to the beneficiaries. There is no requirement for assets to be held in ongoing trusts.

A Will could be rendered invalid when:

• The deceased lacked testamentary capacity or was otherwise not of sound mind when the Will was executed (e.g. if the person was senile or under the influence of alcohol or drugs)

• The Will was improperly executed (e.g. was not signed or changes were made without being initialed)

• There was undue influence or coercion of the deceased by beneficiaries or others

• The deceased left most or all of their assets to one or more of the attesting witnesses

If the executor has any concerns about the validity of the Will, they should immediately seek legal advice.

Most Wills have to be probated because banks and other financial institutions will not usually give the executor access to the deceased’s accounts nor release any assets without a probated Will.

Financial institutions insist on probate because if they act on a probated Will and then something goes wrong with the estate (e.g. the executor absconds with the estate assets), the financial institution cannot be held responsible.

Every financial institution has its own probate requirements and dollar minimums. A financial institution may waive probate if the size of the deceased’s accounts was very small (e.g. less than $10,000), and where everything goes to a surviving spouse or immediate family members who are also their clients. 

If accounts in the deceased's name were very small, the executor should call the financial institutions to determine if they require probate, before taking the time and incurring the costs to apply for probate.

In most jurisdictions, there is no legal requirement to use a lawyer to complete a probate application. If the executor is very experienced with legal documents, they may wish to obtain a set of blank forms and decide if they want to try making the application on their own.

It is extremely important, however, that the probate application must be done on a “first time right”, timely basis, because without a grant of probate, the executor cannot move forward with most other aspects of the settlement process.

If there is the smallest error or omission on a probate form, the court will reject and return the entire package for corrections, thus delaying the estate settlement process by weeks, possibly months.

On this basis, QuickEstate™ recommends that the executor retain the services of an experienced estates lawyer. In most jurisdictions, any lawyer, who is a member of the local bar, can make a probate application. But unless the lawyer is experienced, or unless they have access to an estates lawyer or estates paralegal within their firm, it is likely that errors will be made and the application will be rejected by the court.

The longer it takes to obtain probate, the more frustrated the beneficiaries become and the more exposed the executor is to liability in terms of dealing with the estate assets and liabilities on a timely basis.

QuickEstate™ can be used to gather all the information that the lawyer will ask the executor for to complete the probate application. Having the information organized in advance of visiting the lawyer’s office will save an enormous amount of time and money.

No. Most people don’t know that a valid Will is the tip of the iceberg when it comes to settling an estate. The Will is a blueprint that governs the distribution of your assets, but it does not tell your executor how to do the job.

QE provides a framework to collect information that will be needed by your executor then gives them step-by-step advice and the tools to do the work when the time comes.

We recommend investing the money to have an experienced estate lawyer draft your Will, power of attorney and any other estate documents.

Technically, any lawyer can draft a Will, but your well-intentioned buddy, Bob, who is a different kind of lawyer, may not know what estate questions to ask. A poorly crafted Will can be as bad as having no Will at all; it happens all the time.

If your estate is super small, with very few financial, service provider accounts and beneficiaries, or if you’re on a tight budget, a reputable online Wills kit may work.

Either way: just do it!

Learn more about Dying Without a Will.