What happens if there is an error on the will?

I recently helped a client get probate for her mother’s estate. The will had been done years earlier, and unknown to everyone involved, the pages were accidentally misnumbered to be missing one number – so while there were no pages missing, it appeared that page 5 was not there. Thankfully, we were able to get the lawyer who drafted it to sign an affidavit that there was no page 5 and it was simply a typo, and were able to get probate for the estate.

We all make mistakes; none of us is immune. For minor errors like this, it is often possible to explain the situation to the court and have probate approved. If there are more serious errors, it may require a formal hearing to address the issue. Either way, just because there is an error is not fatal to a will.

Mirror, mirror?

I see a lot of couples who come in to do their estate planning together. Usually, it is a first marriage for both, and they want to leave their entire estate to each other. This is a situation where it often makes sense for them to see me as a couple. Sometimes, though, it doesn’t.

When you see the same lawyer as a couple, that lawyer has an obligation to disclose information shared with them to the other party. This includes years in the future, if you want to make any changes – you can’t do that with the same lawyer without your spouse’s consent. As long as you are both married to each other and both alive, that lawyer is conflicted out of doing anything for only one of you on the same matter.

One solution is to do two separate retainers – you each do your wills with the same lawyer, but individually. This allows you to change your wills in the future. This would make more sense in the situation of a second or later marriage where you might want to leave assets to someone other than your spouse.

Ultimately, this is a question to discuss with your lawyer, before you go ahead with will instructions.

Where will you be buried?

In Ontario, much to the surprise of many, you cannot dictate what happens to your body on your death. It is, by law, the property of your executor. For that reason, it is incredibly important to have a will in place that names an executor if you want to ensure who takes care of your body.

There was a case last year that involved six siblings and a dispute over where their mother should be buried. It’s a very sad case to read, but it also clearly illustrates the point that it is critical to think about who will respect your wishes about your burial. Another reason, among many, to be thoughtful about choosing an executor, and to choose one.

Severing a joint tenancy to protect an inheritance

Last time, I blogged about not adding someone on jointly to title simply to avoid probate. This time, it’s terminating joint ownership in order to protect your heirs.

In Ontario, if you own property jointly with someone, you can sever the joint ownership at any time with no notice to the other person. Where this comes into play most frequently is with separations. If you have separated from your spouse, and you want to ensure that your half of the house goes to your kids rather than your now ex-spouse, you can sever the joint tenancy. This means that 50% of the house will go into your estate; if you have updated your will, this will put that 50% to your heirs (children, charities, etc.) rather than to your ex-spouse.

If you own a house with someone, and no longer want them to be able to have your half of it, this can be a useful solution.

Joint tenancy: to add, or not to add?

I have a lot of clients who ask me about adding a child on title to their property in order to save probate taxes down the road. And to almost all of them, I say that I don’t recommend it.

  1. Is your child married? What happens if they get divorced, and now their ex-spouse claims part of your house as a matrimonial asset?
  2. Does your child run a business? What happens if the business runs into trouble, and your child’s creditors come knocking, looking for their share of your home?
  3. Does your child own their own house? Even if everything else works out fine, capital gains tax for a secondary property is often more than probate tax.

The bottom line: probate tax is often the least of your worries. If you truly want to minimize it, sit down with your lawyer and your accountant and figure out a way to do so that actually makes sense.

Digital assets are really, truly important

Whenever I see a new client about a will, I ask about digital assets. For most people, this is their social media and email account; once or twice I’ve had clients with PayPal accounts that they store money in, but never anything significant. So most of my clients don’t see the need to even address their digital assets, because they’re not worth much.

But what about when they are?

Gerry Cotten died suddenly earlier this year. He was the CEO of QuadrigaCX, a cryptocurrency exchange that happened to be the largest in Canada. Mr. Cotton did not plan for what was to happen in the event of his death; like many in the tech world, death seems to be a low priority concern. The problem in this case is that his lack of planning has led to multimillion-dollar losses for his clients.

Cryptocurrencies are attractive because of their untraceability and security, but that security can also be their downfall. In the case of QuadrigaCX, Mr. Cotten was literally the only person with access to the necessary keys to allow the individual owners to access their investments. Because of his death, up to $250 million is locked up and inaccessible to its owners. It may never be recovered.

Most of us don’t have access to this level of money in digital assets, but dealing with your digital assets is still important. If you haven’t address them in your will, you should.

 

You can go here for more information about QuadrigaCX.

At what age should a beneficiary inherit?

For my clients who have young children, the most difficult question is often, who should be the guardian. The second most difficult question: when should they inherit?

Generally, I would not recommend anyone inheriting at age 18; most 18-year-olds are not mature enough to handle a large inheritance, and once your house is sold and your life insurance is liquidated, there could be hundreds of thousands of dollars going to a very young adult. However, some young adults may be mature enough to manage a large inheritance, and some 40-year-olds are still not ready. Ultimately, it is up to the parent to decide. The bottom line is that it is a very individual decision, and should be made thoughtfully to ensure that the inheritance is not squandered quickly after the parent’s death but managed to provide for the child’s needs for potentially a longer term.

Get divorced already

I’ve seen it too many times – someone separates from their spouse, but never gets divorced and never does a separation agreement because they don’t have kids and “it doesn’t matter”. Except, it does matter.

If you are legally married with no separation agreement, your spouse will inherit your entire estate if you don’t have a will. If you want this to happen, then go ahead; do nothing. But this is probably not what you want.

Of all of the clients I’ve had come to my office, bewildered at their sudden inheritance, I’m quite certain that none of them expected to inherit, and I’m also quite certain that their former spouses did not want them to inherit. Further, I’m quite certain that their former spouse did not want them arranging their funeral and burial, but that’s also what legally happens.

Don’t assume you know the law. Don’t assume that what you want to happen, will. If you are no longer with your spouse, get divorced, or get a will. Better yet, get both.

Who is entitled to inherit under your will?

Ontario is a jurisdiction where there is broad testamentary freedom. What that means is that, beyond some basic rules, you can leave your estate wherever you want. If you are legally married (not common law), you have to consider your spouse’s rights. If you have minor or dependent children, you have to consider their rights. And if you financially support someone, even if they are not related to you, they may also have a claim on your estate. Beyond that, you can leave whatever to whoever.

Leaving your estate to one niece and not the other? Totally fine. Cutting out adult, independent children and leaving everything to charity? A-OK. You are always best to consult a lawyer before making a decision that could be controversial, especially if the beneficiaries will need to get along with people who were cut out, but you have no legal obligation to leave an inheritance to someone who doesn’t have a clear right to it.

No Will? No Way!

According to this poll taken in 2018, 51% of Canadians do not have a Will. Of those surveyed, only 35% of those with a Will have one that is up-to-date. That is 65% of Canadians that either have a dated estate plan or don’t have one at all. Why are the majority of Canadians putting off estate planning?

If you die without a Will in Ontario, the division of any assets on your death will be determined by the Succession Law Reform Act. This Act strictly sets out who will inherit under your Estate and might exclude those who you would have otherwise left assets to (such as a common law spouse).

If your estate plan is out-of-date, you could be excluding those you now wish to include or including those you now wish to exclude from inheriting your assets. There are also potential for problems in an outdated Will because of the impact of legal decisions that have occurred since the Will was written.

There are several reasons that people will give for not having a Will or not getting their current Will updated. These include being too young to need a Will, not wanting to think about death, getting a Will costs too much money, and not having enough assets to need a Will. Without estate planning, you could potentially be leaving an estate that could be significant work and very costly to your family and friends. That is why it is so important to have an updated Will, because it is not only yourself, but those you are leaving behind that you have to consider.