# Do you really need a will?



## gibor365

I have no idea about estate laws in Canada and wondering if myself and my wife need a will? In any case we want to name each other as a full beneficiary on all properties ....


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## avrex

You don't "have to" have a will........but you probably should.

What if you and your wife both get "wiped out" in a car accident?

If you don't have a will, this means that you have died "intestate" (ie. without instructions).

In Ontario for example, the government's "Ontario Succession Law Reform Act" will come into play when this happens.
This act will decides how you and you wife's assets get distributed.

gibor, do you really want the government deciding where your money should go? 

By the way, if you have no living next of kin, then your entire estate :eek2: goes to the Ontario government.


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## OhGreatGuru

Try Googling "reasons why you should have a will".

Go to your library or bookstore and borrow/buy books such as "The Canadian Guide to Will and Estate Planning". Such books usually start with a chapter on why you should have will.

Read some of the other threads on this site about wills and estates, and discover some horror stories about people who don't do proper estate planning.


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## My Own Advisor

gibor said:


> I have no idea about estate laws in Canada and wondering if myself and my wife need a will? In any case we want to name each other as a full beneficiary on all properties ....


Yes unless you have joint ownership for everything


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## gibor365

How to find good lawyer who can write a will and how expensive it is?


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## AltaRed

gibor said:


> How to find good lawyer who can write a will and how expensive it is?


That is a bit of a crap shoot. Most 'firms' have a boiler plate pro forma that their 'family/estate' lawyers use but you pay for that one way or the other. A smaller boutique legal firm or one person shop is going to start with a template, perhaps from the Law Society of their province. Usually lawyers that practice family law also do estate law. If your wills are simple (no children), I'd guess in the range of $500 each. More if you add the stuff described next......

Perhaps just as (or more) important is the situation with Powers of Attorney (POA) and Personal Health Directives. The more likely issue to face one of you (before death) is having someone you trust to be your Attorney in the event you become incapacitated or mentally incompetent and cannot make your own rational health and/or financial/legal decisions. Who do you want to pay your bills? Who do you want to make the decision where you live? And then on Health Directives, do you want to be resuscitated? Kept alive by artificial means, e.g. artificial lung, intravenous, etc? At what point do you want the system to pull the plug?

I cannot imagine NOT having these latter documents in place. Every province has different names and types of documents to cover these items. I had to re-do all of my documents when I moved to BC a few years ago.

Added: Just this past month, my very elderly mother entered hospital due to pneumonia and soon after became irrational and semi-conscious. As soon as we presented the hospital with a copy of her Health Directive, they knew precisely what to do and not do to keep her alive and comfortable (or not). She passed away with 24 hours in the way she wanted without prolonging what could have been a long ugly/stressful/painful process. Do NOT underestimate the importance of this stuff (just like Disability Insurance is of more importance to a breadwinner than Life Insurance).


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## gibor365

Wow....it looks pretty complicated.... Anyone who lives in GTA, can recommend lawyer firm who doing wills?

Just did google search and in globe and mail there is recommendation to use Will-O-Matic online will kit


> One of the latest kits aims to overcome this shortcoming. It’s called Will-O-Matic and it was developed by lawyer Michael Carabash to work much like tax software, where you’re guided through an online process with lots of prompts and information, and print out your documents at the end.


http://www.theglobeandmail.com/glob...-your-way-to-a-no-fuss-legacy/article4178671/

https://www.dynamiclegalforms.com/wills_splash.php

Anyone used it?


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## Moneytoo

gibor said:


> Just did google search and in globe and mail there is recommendation to use Will-O-Matic online will kit
> ...
> Anyone used it?


We did our wills soon after we came to Canada (so more than 20 years ago) using one of those kits (it wasn't online back then, but one of our friends bought a CD with will software, so we all did it ) Saw a lawyer last year about another issue, he right away suggested to review (and redo) our wills. Didn't feel like we needed to as ours are pretty simple: everything goes to the surviving spouse, or to our only daughter if we both die. And a cremation clause for me lol


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## carverman

Moneytoo said:


> We did our wills soon after we came to Canada (so more than 20 years ago) using one of those kits (it wasn't online back then, but one of our friends bought a CD with will software, so we all did it ) Saw a lawyer last year about another issue, he right away suggested to review (and redo) our wills. Didn't feel like we needed to as ours are pretty simple: everything goes to the surviving spouse, or to our only daughter if we both die. And a cremation clause for me lol


My will done by a lawyer with a PoA for my finances and health care requirements, which includes the "do not resuscitate clause" was about $500. 

You don't have to redo your will each time. It all depends on what needs to be updated or changed. 

A codicil (update) to a will is acceptable as long as you are of sound mind, and have two witnesses sign after witnessing your signature.

For instance: If you decided after your will was done, to leave something to a charity, you can add this to your FINAL will as a codicil.

http://www.wikihow.com/Write-a-Codicil


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## janus10

Gibor, we had our wills, POA, Living Will, Personal Health directives done by our lawyer who handled our house purchase contracts. He didn't charge much for it, as he personally felt that too many people didn't spend the $ and time putting together these types of documents. So, he'd rather barely cover his costs and do what he could to help people avoid the messy aftermath than put another barrier by charging a lot of money.

If you want his contact details, please PM me.

But, I have been thinking that I should take a look at those documents again to make sure they are still relevant even though nothing materially has changed in our lives (except we are all getting older!).


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## carverman

janus10 said:


> But, I have been thinking that I should take a look at those documents again to make sure they are still relevant even though nothing materially has changed in our lives (except we are all getting older!).


Your LAST will and testament IS your will until the day you die.

What can change over the years is: exclusions or additional provisions to the will, or a change of administrator (executor).

Some cases, depending on complexity, may require a will be to updated by a legal person, but in most cases if you know how, and the change is
simple, you can do it yourself through a codicil *which must be included in the ORIGINAL will* and copies of it in any copies given to the executor.

Only the original and last will, signed and witnesses in ink (not a photocopy of it), is what will be used to file the will with the probate court by your executor. 

Probate fees will still apply depending on which province...flat rate for first $50k of your estate, and then "so much per thousand" after that.


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## newfoundlander61

Yes, my mom passed away without a will and man what a tangle. Eventually got it sorted out but took months, house in her name to sell etc etc. Get a will and Power of Attorneys for you both to cover medical; financial; (general & specific).


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## Toronto.gal

avrex said:


> gibor, do you really want the government deciding where your money should go?


He made an appt. with a lawyer 1st thing this morning after ur post. :biggrin:

With 2 kids - one a minor, don't delay it gibor.



Moneytoo said:


> ours are pretty simple: everything goes to the surviving spouse, or to our only daughter if we both die.


And if it's the 3 of you? No need to answer, just that there are a lot of scenarios that some people might not think about.


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## Eclectic12

carverman said:


> Your LAST will and testament IS your will until the day you die.
> What can change over the years is: exclusions or additional provisions to the will, or a change of administrator (executor)...


Yes ... though I also recall my parents changing their will a couple of times due to the province changing their legislation, which made the wording in the will no longer valid or having the opposite effect they wanted.


Cheers


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## Moneytoo

Toronto.gal said:


> And if it's the 3 of you? No need to answer, just that the are a lot of scenarios that some people might not think about.


Then the house goes to our cat with our parents as his guardians! lol But yeah, I'll have to read what we actually have in our wills - especially since we had a different cat when we were 26...


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## gibor365

Moneytoo said:


> We did our wills soon after we came to Canada (so more than 20 years ago) using one of those kits (it wasn't online back then, but one of our friends bought a CD with will software, so we all did it )


Will-O-Matic has a pretty good review... want to check it out...

Last year sent email to couple of lawyers with one simple question.... they didn't bother even to answer...
So, would prefer to do it online if it's simple and valid


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## Rebecca

And Walmart does simple wills now too. Only $99 per person. Not sure that I'd feel comfortable with one though, so if you go that route, you could be taking a risk.


http://www.thestar.com/business/per...21/walmart_shoppers_can_now_get_99_wills.html


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## carverman

gibor said:


> Will-O-Matic has a pretty good review... want to check it out...
> 
> Last year sent email to couple of lawyers with one simple question.... they didn't bother even to answer...
> So, would prefer to do it online if it's simple and valid


Here's the online will my Ukrainian friend (who speaks Russian and English) used. Should be valid in any province.

http://www.lawdepot.ca/contracts/will/preview.php?loc=CAON

I think the license was $20 and good for about 2 weeks if you decide on changes. You edit it on line and their software composes
the will and when you are satisfied, print it out and have *TWO INDEPENDENT WITNESSES *witness the date and your signature.

(independent means that they should not be named benefiiciaries in your will..that could be regarded as "conflict of interest"by the 
probate court when the will is filed at the courthouse.


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## gibor365

> I think the license was $20 and good for about 2 weeks if you decide on changes. You edit it on line and their software composes
> the will and when you are satisfied, print it out and have TWO INDEPENDENT WITNESSES witness the date and your signature.
> 
> (independent means that they should not be named benefiiciaries in your will..that could be regarded as "conflict of interest"by the
> probate court when the will is filed at the courthouse.


Will-O-Matic requires the same... and actually I just was thinking about it.... curious if my relatives (like cousin and his wife) can be TWO INDEPENDENT WITNESSES if they are not beneficiaries?


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## AltaRed

gibor said:


> Will-O-Matic requires the same... and actually I just was thinking about it.... curious if my relatives (like cousin and his wife) can be TWO INDEPENDENT WITNESSES if they are not beneficiaries?


I wouldn't speculate on that. Indeed, it is best to have 2 unrelated and independent parties. IOW, I wouldn't even use a cousin if I had alternatives (like co-workers, friends, neighbours). None of them have to know a word of what is in the document, only to witness your signature.

One thing that has not been mentioned and not sure how/where it applies in various provinces. But this past month with my mother's will signed in 1979, the probate court (Alberta) wants affidavits from the witnesses that effectively say, in their opinion, the person signing the will was of sound mind when signing the will. I believe, but cannot remember if, that was the case for witnesses who witnessed me signing my new will (in BC) a few years ago.


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## gibor365

Went through Will-O-Matic ...seems pretty simple ... 

Not sure if Affidavits are needed. 


> Completing the Affidavits is recommended but not mandatory for your Will. When you die, your Will needs to be legally verified by the Court (i.e. probated)


If Will is very straightforward, like Moneytoo's  - "all goes to surviving spouse and if both die 50/50 to kids", is probate still be needed? and those "Affidavits "?
It's not a problem to ask withnesses to sign of every page of Will, but I Don't feel too comfortable to ask our friends to miss working days and to go to Notary Public and sworn on ... Bible ?! (no one of our friends are Christians)....

If lawyer will prepare Will. ...do I still need 2 witnesses or Lawyer will do everything include afidavits?


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## carverman

AltaRed said:


> One thing that has not been mentioned and not sure how/where it applies in various provinces. But this past month with my mother's will signed in 1979, the probate court (Alberta) *wants affidavits from the witnesses that effectively say, in their opinion, the person signing the will was of sound mind when signing the will.* I believe, but cannot remember if, that was the case for witnesses who witnessed me signing my new will (in BC) a few years ago.


Wow! They are getting very picky indeed. I would think that neighbours would qualify as witnesses. It is always good to include their address in case of future
contact required and hopefully they are still around. Not sure how the probate court would get an affidavit from a witness that has passed on before you
do. 
New territory in wills I guess. :confused-new:


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## carverman

gibor;683242
If Will is very straightforward said:


> It doesn't matter about their religion..they are just witnessing YOUR SIGNATURE. I don't think you need to go to a notary public just to have them sign, but both witnesses need to be there to see you sign. It can be in your home.
> 
> 
> 
> 
> you must sign your Will in the presence of at least two witnesses, and the two witnesses must also sign the Will, in the presence of the "testator" (yourself) and in the presence of each other. You and the witnesses should also initial each page, so that it is not possible to alter any pages after the Will has been signed. A witness cannot be a beneficiary of the Will, they cannot be the spouse of a beneficiary (at the time of signing), they cannot be a minor, and, like the "testator" (you), they must be of sound mind.
> 
> 
> 
> 
> 
> 
> 
> -----------------------------------
> For the signing procedure, gather the witnesses together in a room. You should make a formal statement that you have gathered them to witness the signing of your Will. *They do not have to read the Will or know its contents. They are only required to witness your signature.*
> 
> Click to expand...
> 
> 
> 
> 
> 
> If lawyer will prepare Will. ...do I still need 2 witnesses or Lawyer will do everything include afidavits?
> 
> Click to expand...
> 
> I had a lawyer do mine because of divorce/support complications.
> The lawyer signs acting as a witness to your signature, and somebody in the lawyers' office also is used to witness your signature.
> No affidavits are required I believe because it is done by someone in the legal profession.
> 
> 
> 
> read this for more info:
> http://www.legalwills.ca/signingawill
Click to expand...


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## praire_guy

I think if you have one of the witnesses sign an affidavit of execution (hope I got it right) and have it witnessed by a notary it really moves things along. Otherwise the court has to verify something or another. 

I'll dig it up. I know something was signed and notarized with my I laws wills. 

I'd go the online route. Lawyers charge way too much. 500 per will/poa is criminal. 
All they are doing is using a,standard form, and crossing out the last guys name and inserting yours. 

Of course if you have a complex estate, handicapped children, trusts, etc then see a lawyer. 

But to just leave everything to one person? Do it yourself


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## carverman

Even with a valid will, the estate will be "frozen" until the probate court gives the banks and real estate (if that the case) permission to sell any real estate, if that applies and release all monetary funds owned by the deceased, unless prior arrangements have been made. 

Banks will freeze all monetary assets until they get the release forms from probate..that is why there is a minimum probate fee that you can't get around.
If you owe money, the tax man comes first, followed by any creditors and of course the bank if there is a mortgage.


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## gibor365

> Even with a valid will, the estate will be "frozen" until the probate court gives the banks and real estate (if that the case) permission to sell any real estate, if that applies and release all monetary funds owned by the deceased, unless prior arrangements have been made


Practically all cash accounts/GIC are joint ... not sure about RRSP/LIRA/TFSA - my wife is beneficiary on all of them and it's setup in the bank... should she has any issues with those registered accounts or she can use it right awayv ?


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## carverman

gibor said:


> Practically all cash accounts/GIC are joint ... not sure about RRSP/LIRA/TFSA - my wife is beneficiary on all of them and it's setup in the bank... should she has any issues with those registered accounts or she can use it right awayv ?


As far as I know, if the accounts are held jointly, she can use them right away and she is one of the owners of these accounts.

Also if the house deed has her name on it (and you are described as "spouses of each other" and "right of survivorship" the houses passes to her without being included in (your) the estate.

RRSPs etc are different, since there is a tax implication and upon the death of the holder, the RRSP would be deemed to be 'cashed" by CRA and any taxes
payable by whomever does your final tax return from the residual estate...AFAIK. 

You do realize that if there is any residual monetary value that you have, that is still considered part of your estate and not your wife's. 

Also there is a filing fee for probate and if your executor can't handle the forms required for probate, a lawyer will have be retained to do that for your estate,
before it can be released for distribution.


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## gibor365

I gave instructions to my wife that if I gonna suddenly pass away, to perform specific actions on the accounts.... like to sell specific stocks, move cash from one account to another etc... she has my credentials to all accounts..... Curious if she can have troubles by doing it...


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## My Own Advisor

janus10 said:


> Gibor, we had our wills, POA, Living Will, Personal Health directives done by our lawyer who handled our house purchase contracts. He didn't charge much for it, as he personally felt that too many people didn't spend the $ and time putting together these types of documents. So, he'd rather barely cover his costs and do what he could to help people avoid the messy aftermath than put another barrier by charging a lot of money.


Same here in Ottawa. He was great with us.


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## Eclectic12

carverman said:


> ... RRSPs etc are different, since there is a tax implication and upon the death of the holder, the RRSP would be deemed to be 'cashed" by CRA and any taxes payable by whomever does your final tax return from the residual estate...AFAIK.


This is not true for a qualified beneficiary such as a spouse, financially dependent child/grandchild under 18 years of age or financially dependent mentally/physically infirm child or grandchild of any age. They get tax deferred options.



> The spousal rollover provision allows a spouse that is listed as the beneficiary to rollover the amount of the deceased’s RRSP into their RRSP without any tax consequences. Obviously for planning purposes, it is wise in most cases to list a spouse as a beneficiary.


http://retirehappy.ca/what-happens-your-rrsps-when-die/
http://estatelaw.hullandhull.com/20...-planning/what-happens-to-your-rrsp-on-death/


All other beneficiaries ... this is true.


Cheers


*PS*

TFSAs are better as the FMV value at death passes over to *anyone* named as beneficiary tax free. The only taxes are for increases in value while the paperwork is done. 

Where the spouse is a "successor holder" beneficiary (in the provinces/territories that have this designation) - everything rolls over (including any income earned after dealth) into the spouse's TFSA *without needing the spouse to have TFSA contribution room*.

http://www.theglobeandmail.com/glob...ay-tax-on-my-tfsa-after-i-die/article4574575/
http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/tfsa-celi/dth/sccrhldr-eng.html

If the beneficiary is not a spouse ... they can only contribute the proceeds into their own TFSA where they have available TFSA contribution room.


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## AltaRed

carverman said:


> Not sure how the probate court would get an affidavit from a witness that has passed on before you
> do.
> New territory in wills I guess. :confused-new:


When I asked that question to the lawyer doing my mother's estate, he said we would have to go to court, aka like a 'mini-trial' with cross-examination, etc. Fortunately, the lawyer that did my mother's will in 1979 is (or was last month) still alive and mentally capable, but feeble and can swear to, and sign, an affidavit.


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## Eclectic12

carverman said:


> ... Banks will freeze all monetary assets until they get the release forms from probate..that is why there is a minimum probate fee that you can't get around...


I'm not so sure ... my mom & aunt as executors didn't seem to have any trouble withdrawing money to pay bills (ex. property taxes for my uncle's house, gas bill, phone bill etc.). I believe this was after they had provided the a copy of the death certificate and proof they were the executors but well before selling the house or probate.


Of course these amounts were a drop in the bucket compared to what was eventually sent to the beneficiaries.


Cheers


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## carverman

AltaRed said:


> When I asked that question to the lawyer doing my mother's estate, he said we would have to go to court, aka like a 'mini-trial' with cross-examination, etc. Fortunately, the lawyer that did my mother's will in 1979 is (or was last month) still alive and mentally capable, but feeble and can swear to, and sign, an affidavit.


Additional complications that should have been unnecessary in the first place. My named executor was executor of her mother's estate.
Because of the requirement to complete the NECESSARY forms for the estate, she decided it would be better to have a lawyer do it, and pay the lawyer.

Here in Ontario, the necessary forms to probate a will are available, 
BUT the question would be whether the amed executor/administrator is capable of doing this on their own, without the help of a lawyer, depends on the competence of the executor in handling the necessary paperwork,
and whether they have/spare the time to run down to the court house to file the forms and pay the estate administration tax.



> An application for "probate" (now called a certificate of appointment of estate trustee with a will)





> In certain circumstances, the estate administration tax paid may be calculated on an estimated value of the estate. In these circumstances, the personal representative must:
> 
> *File an affidavit as to the estimated value of the estate;*
> Pay the *estate administration tax on the estimated value*; and
> Provide an undertaking to file, within six months, *a sworn/affirmed statement of the total value of the estate, and to pay the balance of any additional tax owing (if any).*


http://www.attorneygeneral.jus.gov.on.ca/english/estates/estates-FAQ.asp#s5

It is no longer a simple process to just hand out dad's or mother's estate that has monetary value. The gov't wants their slice as well!


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## Eclectic12

^^^^

You make it sound like "in the good 'ole days" it was easy where the gov't was not concerned about getting their slice. Based on the complaints I've heard from executors over the last thirty years ... my impression is that it's never been easy and the gov't has always wanted their slice.


Or maybe it's just the gap between how the executors expected a tedious but quick moving process ... then discovered it was work. :biggrin:



Cheers


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## gibor365

In my mother's case things are very simple.... all her accounts (and it's only HISA and GIC) are joint with me....so, as far as I understand, they will just pass to me...plus TFSA where I'm the only beneficiary and I always can transfer it to our joint HISA.... and except it she doesn't have any assets, except some old table/chairs and beds from IKEA and Bricks 
so, not sure if she needs a will at all....

With my registered account - more complicated as I have a lot of equities .... so I case of my sudden death, I told her to sell all individual stock and setup ETFs coach potato.... don't think my accounts will be freezed right away


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## carverman

gibor said:


> In my mother's case things are very simple.... all her accounts (and it's only HISA and GIC) are joint with me....so, as far as I understand, they will just pass to me...plus TFSA where I'm the only beneficiary and I always can transfer it to our joint HISA.... and except it she doesn't have any assets, except some old table/chairs and beds from IKEA and Bricks
> so, *not sure if she needs a will at all....
> *


She should have a simple will..Ie: " I give all my worldly possessions to my son" . Value = (no monetary value) 
Even if she has just a few sticks of furniture, upon her death, the process still requires her estate to be sent to probate, I believe. The coroner is responsible for the death certificate. The furneral arrangements for the rest. 

Not sure what the tax would be in her case (no monetary value), but I'm sure there is still a filing fee. as there has to be a tax clearance certificate issued.
If she is collecting any Canadian pensions. OAS/CPP?GIS, the appropriate agencies including CRA have to be notified. Any taxes, your mother owes
have to be paid first out of her estate, and distribution cannot happen until the gov't issues a tax clearance certificate.

As mentioned, it's not a case of just the funeral followed by distribution of the estate. Complications could arise in some cases.
Certainly she can transfer anything of value to you or her family before death, or list as separate items in her will, and that at least means that the gov'ts can't touch that.


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## Retired Peasant

gibor said:


> I gave instructions to my wife that if I gonna suddenly pass away, to perform specific actions on the accounts.... like to sell specific stocks, move cash from one account to another etc... she has my credentials to all accounts..... Curious if she can have troubles by doing it...


At some point the institution would get a copy of the death certificate. There would be trouble if there was activity on the accounts after your death. (assuming you're talking about non-joint accounts). As for those accounts where she is beneficiary, I think she'd need to wait until funds are duly transferred to her. Joint accounts, on the other hand, would be hers instantly.


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## carverman

Retired Peasant said:


> At some point the institution would get a copy of the death certificate. .


Not sure if the financial institutions get one automatically. The family may have to provide a copy to each financial institution.

As always..even in death, you cannot escape fees and taxes...the old saying about death and taxes.

if they (gov'ts) could follow you into your grave, someone would still be sticking out their hand.:biggrin:


http://www.ontario.ca/government/how-get-copy-ontario-death-certificate-online

well at least these days you can order them online ..at $ per copy. 

http://www.ontario.ca/government/what-do-when-someone-dies


There maybe a fee for the coroner's Medical certificate of death....


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## Eclectic12

carverman said:


> Not sure if the financial institutions get one automatically. The family may have to provide a copy to each financial institution.


I believe that you are correct ... they won't get one automatically ... but it won't necessarily be family that provide it. Most executors I've talked talked to have mentioned that as part of wrapping up the accounts, they had to provide it.


Cheers


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## CalgaryPotato

Typically once you get your original death certificate you should go get 10-20 notarized copies. Everyone will need their own copy to keep. Banks, lawyers, government, etc.


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## AltaRed

CalgaryPotato said:


> Typically once you get your original death certificate you should go get 10-20 notarized copies. Everyone will need their own copy to keep. Banks, lawyers, government, etc.


The executor is the one to get as many copies as is needed, and then to provide them to the institutions that need them. In Alberta, 'certified true copies of the Statement of Death' provided by the funeral home is good enough for almost all uses, including the Application for Probate. Bro and I just went through that with my mother's estate. A copy went to each financial insititution where there was an account plus CRA plus lawyer, etc. We did not have to provide one to Service Canada for CPP/OAS (notification was enough to stop payments) nor did the Lifeco holding an annuity need one. They were all happy to stop payments.

In our case, and I believe in all cases, a bank will release funds to pay all necessary bills on an 'as required' basis. In our case, the bank specifically made sure payment was made..... We could not touch the account ourselves pending Probate. The same situation might occur for a surviving spouse or dependent child. Funds can be released by the bank to ensure the individuals are not left high and dry for basic living expenses.

Note I said 'Statement of Death'. In Alberta, the actual death certificate is only available from the provincinal government and that can take months to become available. Hence why the Statement of Death is acceptable in most instances.



> With my registered account - more complicated as I have a lot of equities .... so I case of my sudden death, I told her to sell all individual stock and setup ETFs coach potato.... don't think my accounts will be freezed right away


All accounts that are not JTWROS (joint) are technically frozen as of the moment of death. Any activity in such accounts after moment of death is not legal.


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## gibor365

> once you get your original death certificate you should go get 10-20 notarized copies


 I cannot get my own death certificate as well as copies 



> Even if she has just a few sticks of furniture, upon her death, the process still requires her estate to be sent to probate, I believe. The coroner is responsible for the death certificate. The furneral arrangements for the rest.
> 
> Not sure what the tax would be in her case (no monetary value), but I'm sure there is still a filing fee. as there has to be a tax clearance certificate issued.
> If she is collecting any Canadian pensions. OAS/CPP?GIS


That what i don't understand... I won't need those "a few sticks of furniture" ...just some personal things like photos ... than what to be sent to probate?
She may start getting OAS/GIC in 7 years in the best case.... 



> She should have a simple will..Ie: " I give all my worldly possessions to my son"


 than maybe she can just write it down, date and sign on list of paper ?! ... as again , I don't really care what "probate" will decide... all bank accounts are joint and on TFSA , I'm the only beneficiary.



> There would be trouble if there was activity on the accounts after your death.


 but activity on my account can happen in any case.... if for example I have postdated Sell Limit in discount brokeage or postdated transfer on HISA (actually I have one right now , transfer out All cash from PCF when 2.6% promotion is expired)


----------



## carverman

AltaRed said:


> All accounts that are not JTWROS (joint) are technically frozen as of the moment of death. Any activity in such accounts after moment of death is not legal.


Yes, that is what my friend found out when her mom died. Mom had some RRSPs and the bank(s) would not release the funds without copies of the death certificate, even though she was named the executor. 

There were some other hassles with the estate as well, so in the end, she just hired a lawyer because of the long distance driving involved.


----------



## avrex

gibor said:


> I cannot get my own death certificate as well as copies )


The funeral home will provide as many copies as you need, as part of their service.


----------



## AltaRed

gibor said:


> I but activity on my account can happen in any case.... if for example I have postdated Sell Limit in discount brokeage or postdated transfer on HISA (actually I have one right now , transfer out All cash from PCF when 2.6% promotion is expired)


Technically NO. Any instructions cease to exist upon death (although in practice they cease only upon being informed of the account holder's death). It is up to the executor to inform institutions on a judicious basis and there is always a few things that will happen in that interval. I'd suggest an executor should act on what he/she knows within a week or two of death. In my mother's case, bro and I had informed all institutions within about 10 days.


----------



## gibor365

> It is up to the executor to inform institutions on a judicious basis and there is always a few things that will happen in that interval


 In theory yes.... but on practice not every executor (even spouse) knows (or remembers) what accounts and in which institutions deceased hold....
Also I bet that a lot of people don't have will (like us), so there is no actual executor ... from from I understand the court should appoint executor...


----------



## AltaRed

gibor said:


> Also I bet that a lot of people don't have will (like us), so there is no actual executor ... from from I understand the court should appoint executor...


Sadly, yes and yes. But you really do not want the court to appoint one. A third party would likely charge the highest fees permitted by legislation.


----------



## Moneytoo

AltaRed said:


> Sadly, yes and yes. But you really do not want the court to appoint one. A third party would likely charge the highest fees permitted by legislation.


More than $500?


----------



## gibor365

My mom did research on google and found free will template
http://www.canadawills.com/start.htm
I took a look.....looks pretty simple... anyone used it? 
Probably I will give "go ahead" to my mom and 2 her friends (also Russian grandmothers will sign ), Court can invite those grandmothers to testify....only they will need Russian tranlator  . if court won't accept it, court can do whatever it wants....


----------



## AltaRed

Moneytoo said:


> More than $500?


Check the legislation for your province. Most provinces, I believe, suggest a percentage of assets for the executor. Because of my recent involvement as an exector in AB, I believe I read 3-5% of the value of the assets as the normal maximum of accepted range (but I am not charging anything other than out-of-pocket expenses due to it being immediate family and also a beneficiary).

This is above and beyond any legal fees to actually probate a will, the probate fee itself, accountant fees if required to do tax returns (up to 3 of them), and other hired expertise. 

The executor is responsible for establishing an inventory of assets, informing everyone that needs to know, getting Probate (if necessary) done, getting the final tax returns done (up to 3), getting a Tax Clearance Certificate (not required in all cases), selling all the assets if not bequeathed, and distributing proceeds to beneficiaries. There are many documents around, RBC one being one of the best, that list executor duties.

I forget what the OP said is the total assets of the estate but most things, if held jointly, become a no-brainer and pass on to the survivor. That makes an executor's job easier. Probate (as part of an executor duties) may not even be required. In AB, if there is any Real Estate involved, then Probate is required.


----------



## Moneytoo

AltaRed said:


> (but I am not charging anything other than out-of-pocket expenses due to it being immediate family and also a beneficiary).
> 
> This is above and beyond any legal fees to actually probate a will, the probate fee itself, accountant fees if required to do tax returns (up to 3 of them), and other hired expertise.
> 
> The executor is responsible for establishing an inventory of assets, informing everyone that needs to know, getting Probate (if necessary) done, getting the final tax returns done (up to 3), getting a Tax Clearance Certificate (not required in all cases), selling all the assets if not bequeathed, and distributing proceeds to beneficiaries. There are many documents around, RBC one being one of the best, that list executor duties


Both OP and I are in Ontario, I checked the probate fees: http://www.yaleandpartners.ca/calc_probate.htm - but I don't think we know anyone who is qualified to be an executor (but I think I can be as I've been doing our family taxes for years ) As OP, I have a joint account with my mom, my husband has a joint account and car co-ownership with his parents, and neither of them has any estate to speak of. So it's only our wills that we'll consider re-doing (along with estate planning) But it boggles my mind why after death math should be so over-complicated...


----------



## gibor365

> But it boggles my mind why after death math should be so over-complicated...


 Exactly! In Israel it was extremely easy.... in Canada ... holy sh%$!

All my mom's accounts , include, GICs are joint with me.... so it won't be any problem...just gonna transfer money to mine...
The question about TFSA, I'm the only beneficiary.... may court or anyone else "steal" some % of TFSA value , or I will get 100%?


----------



## Moneytoo

gibor said:


> The question about TFSA, I'm the only beneficiary.... may court or anyone else "steal" some % of TFSA value , or I will get 100%?


Look at example here: http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/tfsa-celi/dth/srvr-eng.html - looks like you'll only have to pay taxes on income earned after death. For the first time I feel good that we failed to convince our parents to open TFSAs and they only have checking accounts lol


----------



## gibor365

Moneytoo said:


> Look at example here: http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/tfsa-celi/dth/srvr-eng.html - looks like you'll only have to pay taxes on income earned after death. For the first time I feel good that we failed to convince our parents to open TFSAs and they only have checking accounts lol


and how they gonna calculate interest earned on long term GIC (within TFSA)?


----------



## AltaRed

gibor said:


> All my mom's accounts , include, GICs are joint with me.... so it won't be any problem...just gonna transfer money to mine...
> The question about TFSA, I'm the only beneficiary.... may court or anyone else "steal" some % of TFSA value , or I will get 100%?


There is no 'stealing' of value from your mother's TFSA. However, any aasets, including GICs, will be valued on the date of her death (PAR + accrued interest to date of death) and that is protected from tax. However, because the TFSA is no longer tax protected after date of death, any interest that accrues after date of death is taxable either to your mother's estate OR to you as beneficiary (likely can be handled either way).


----------



## Moneytoo

gibor said:


> and how they gonna calculate interest earned on long term GIC (within TFSA)?


Maybe I should change my username to google... lol

*GICS*
The tax rules treat Guaranteed Investment Certificates as if they had all been redeemed at the date of death.
All GIC interest accrued until death must be reported on the final T1 tax return. Interest earned after death is estate income for the T3 return.

(c) http://business.financialpost.com/entrepreneur/a-look-at-two-certainties-death-and-taxes


----------



## AltaRed

Moneytoo said:


> Maybe I should change my username to google... lol
> 
> *GICS*
> The tax rules treat Guaranteed Investment Certificates as if they had all been redeemed at the date of death.
> All GIC interest accrued until death must be reported on the final T1 tax return. Interest earned after death is estate income for the T3 return.


Your comment is true for non-registered accounts. For a TFSA, there is no taxable interest up to date of death.


----------



## Moneytoo

AltaRed said:


> Your comment is true for non-registered accounts. For a TFSA, there is no taxable interest up to date of death.


Yeah I only wanted to quote this part: "as if they had all been redeemed at the date of death.", but figured gibor will get the idea - and I'm sure those who do calculate it, do it all the time, so know what they're doing


----------



## carverman

Moneytoo said:


> But it boggles my mind why after death math should be so over-complicated...


It's simple..you come into this world with nothing...and you leave with nothing...but anything you manage to acquire in your lifetime is subject to
Fees and taxes, taxes and fees.... interest owing and creditors...

The Taxman (song by the Beatles)
Let me tell you how it will be
There's one for you, nineteen for me
Cos I'm the taxman, yeah, I'm the taxman

Should (13) per cent appear too small
Be thankful I don't take it all
Cos I'm the taxman, yeah I'm the taxman
-------
*Now my advice for those who die
Declare the pennies on your eyes*
Cos I'm the taxman, yeah, I'm the taxman

And you're working for no one but me
the Taxman!


----------



## Moneytoo

@carverman, thanks, now I understand that song! lol


----------



## gibor365

AltaRed said:


> Your comment is true for non-registered accounts. For a TFSA, there is no taxable interest up to date of death.





> All GIC interest accrued until death must be reported on the final T1 tax return. Interest earned after death is estate income for the T3 return.


Now I'm confused again...  . in case of joint GIC , institution send us T5 (interest) and my mom enters it as her income when filing taxes... So by "final T1 " they mean T5 for my mom?! but why T3 after ......? I assume it will be T5 on my return because I will remain the only GIC owner...


----------



## gibor365

> you come into this world with nothing...and you leave with nothing...but anything you manage to acquire in your lifetime is subject to
> Fees and taxes, taxes and fees.... interest owing and creditors..


 Sad, but true! We're saving for our kids and not for this stupid government.... we pay double , triple and quadruple taxes on our income .... and when we die, they continue to charge our savings we pass to children again...


----------



## carverman

gibor said:


> Sad, but true! We're saving for our kids and not for this stupid government.... we pay double , triple and quadruple taxes on our income .... and when we die, they continue to charge our savings we pass to children again...


Yes, and it's only going to get worse, not better. The Provincial Liberal gov't is raising fees (LICENCE TAGS, DRIVERS LICENCE ETC ETC ETC).. consumption taxes mostlu.so far there is no inheritance tax but with the money hungry Liberals, they could come up with another cash cow.


----------



## carverman

gibor said:


> Now I'm confused again...  . in case of joint GIC , institution send us T5 (interest) and my mom enters it as her income when filing taxes... So by "final T1 " they mean T5 for my mom?! but why T3 after ......? I assume it will be T5 on my return because I will remain the only GIC owner...


T5 interest is declared every year by the holder of the GIC. In this case, if your Mom has the lower income and you are both listed as owners of that GIC,
it makes sense.

T1 is the general income tax form, that most of us use. The final T1 for a deceased person would be filed for the year of their death...but if there is
still trust income, then another tax filing has to be done every year while the trust income is being received by someone.



> T3 Tax Form: Trust Income in Canada
> What is a T3 tax form?
> 
> You receive a T3 Statement of Trust Income Allocations and Designations if you have investment income from mutual funds in non-registered accounts and from certain trusts. In Québec, you receive a relevé 16. The income may come from your own investments or from an estate trust as inheritance tax


As I said..the only certain things in this life is death and taxes.:biggrin:


----------



## Eclectic12

gibor said:


> In theory yes.... but on practice not every executor (even spouse) knows (or remembers) what accounts and in which institutions deceased hold....


 ... which is why several executors I know took years to wrap up the estate ... they had to hunt down the accounts/institutions, sometimes from a vague scrap of paper. Whether the deceased made it easy or not for the executor ... it is still their responsibility.

A friend of my sister's wasn't too worried about the amount of work of being an executor. But then after having heard from the deceased that the funeral "is all taken care of at" such and such funeral - they were shocked when the funeral home said "never heard of him, have no contract ... be happy to negotiate something".




gibor said:


> Also I bet that a lot of people don't have will (like us), so there is no actual executor ... from from I understand the court should appoint executor...


 ... which from articles over the years I've read, can translate to a lot of time while the estate is being drained by the custodian fees. Never mind that an executor one has arranged for is far more likely to be making decisions in line with what the deceased wanted than a court appointed stranger.





Moneytoo said:


> AltaRed said:
> 
> 
> 
> Sadly, yes and yes. But you really do not want the court to appoint one. A third party would likely charge the highest fees permitted by legislation.
> 
> 
> 
> More than $500?
Click to expand...

Are you perhaps confusing will lawyer fees to prepare the will with executor fees? 


Ontario court guidelines for a will appointed executor have criteria like:

2 ½ % of the total value of capital receipts of the Estate
2 ½ % of the total capital disbursements of the Estate
2 ½ % of the total revenue receipts of the Estate
2 ½ % of the total of revenue disbursements of the Estate
Annual fee of 2/5 of 1% of the average annual market value of the capital of the Estate

I'd expect the court appointed ones to be in line with this. I also expect that the court appointed ones would not be like post # 50 where less than the guideline is charged.

Then too, where the estate has been complicated, additional executor compensation has been granted.


As another example of why would could prefer professional advice ... my aunt's friend wanted my aunt who had agreed to be executor to have a necklace she had admired. Trouble was - the wording she used meant the necklace was the only compensation my aunt was allowed. I suspect if my aunt had challenged it in court she could have had the imbalance addressed but she said she was doing it for a friend.


Cheers


----------



## Moneytoo

Eclectic12 said:


> ... which is why several executors I know took years to wrap up the estate ... they had to hunt down the accounts/institutions, sometimes from a vague scrap of paper. Whether the deceased made it easy or not for the executor ... it is still their responsibility.


Our "financial planner" (who sold us a crappy life insurance years ago and wanted to sell some more last year ) gave us a comprehensive checklist to write down all the accounts and possessions and advised to keep it in a safety deposit box along with our wills. I found the list (still not filled out of course) when looking for our wills last night (that I still didn't find) - hopefully this thread scared me enough to convince my husband to do both... Thanks!


----------



## fraser

My work as an executor was made so much easier because the deceased had an up to date, notorized will, a list of assets, a prepaid funeral, and clearly noted preferences. It made the work of doing the final tax return, probate, and property transfer so much easier, less complicated, and much less expensive. It was actually all quite straightforward and easy.


----------



## AltaRed

gibor said:


> Now I'm confused again...  . in case of joint GIC , institution send us T5 (interest) and my mom enters it as her income when filing taxes... So by "final T1 " they mean T5 for my mom?! but why T3 after ......? I assume it will be T5 on my return because I will remain the only GIC owner...


As Carverman said, don't confuse tax slips with tax returns. There will likely be 2 tax returns to be done after someone's death, a T1 tax return for the year of death up to date of death, and then a T3 return for income received every year thereafter untll the estate is settled. 

Let's use an example of someone passing away April 30th, and let's say that person had one annual GIC that paid interest every July 1st. The 2015 T1 tax return would be filed by Apr 30, 2016 and cover the period from Jan 1, 2015 to Apr 30, 2015. It would include the 'accrued' interest on that GIC from July 2nd, 2014 to Apr 30, 2015 even though no interest had yet been paid. The T3 tax return to be filed by Apr 30, 2016 as well would cover the GIC interest from May 1, 2015 onward.


----------



## AltaRed

fraser said:


> My work as an executor was made so much easier because the deceased had an up to date, notorized will, a list of assets, a prepaid funeral, and clearly noted preferences. It made the work of doing the final tax return, probate, and property transfer so much easier, less complicated, and much less expensive. It was actually all quite straightforward and easy.


Agreed that people should have the courtesy to have their affairs in order for their executor. Otherwise, why do they "hate" their executors so much that they leave a mess? An executor has the option to resign to the court and they likely would (should) if they see an awful mess. 

My executors have a listing of account numbers of all my assets that I update any time there is activity opening and closing accounts, they know my funeral/death wishes, they know where the will and documents are, they know the boot up password to my computer, and they have a key to my house, etc. It should be reasonably straight forward.


----------



## gibor365

> Let's use an example of someone


 and how it will work in case of joint GIC and one of joint tenets passes away? I understand that in this case GIC shouldn't be collapses and will become individual, right?
And what tax slips/tax returns required in this case?


----------



## carverman

Eclectic12 said:


> .
> 
> Ontario court guidelines for a will appointed executor have criteria like:
> 
> 2 ½ % of the total value of capital receipts of the Estate
> 2 ½ % of the total capital disbursements of the Estate
> 2 ½ % of the total revenue receipts of the Estate
> 2 ½ % of the total of revenue disbursements of the Estate
> Annual fee of 2/5 of 1% of the average annual market value of the capital of the Estate


I heard that a will appointed executor can charge a customary 5% of the value of the estate...but what you are saying could addup to more than 10% of the value of the estate..this sounds more like what a lawyer administrating/executing the will would charge.


----------



## carverman

gibor said:


> and how it will work in case of joint GIC and one of joint tenets passes away? I understand that in this case GIC shouldn't be collapses and will become individual, right?
> And what tax slips/tax returns required in this case?


My understanding of jointly held GIC is that you need to review your jointly held GICs with the financial institutions that issued them,
*and include the necessary "legalese" clauses*.
THIS IS VERY IMPORTANT!

There are *two types of registrations for joint GICs* - 

"with" and "without" right of survivorship.

"With right of survivorship" means that a*fter proper documentation has been filed, the deceased joint holder can be removed from the ownership.
*
"Without right of survivorship" means that this is *not possible, ownership will be determined after the estate has been settled.
*


----------



## gibor365

> "With right of survivorship" means that after proper documentation has been filed, the deceased joint holder can be removed from the ownership.
> 
> "Without right of survivorship" means that this is not possible, ownership will be determined after the estate has been settled.


Hmmm... never though about it... Will send email to Peoples Trust (where majority of our GICs are)


----------



## Eclectic12

carverman said:


> I heard that a will appointed executor can charge a customary 5% of the value of the estate...but what you are saying could addup to more than 10% of the value of the estate..this sounds more like what a lawyer administrating/executing the will would charge.


The way I read the articles, it seems the guidelines are a pick & choose type (i.e. 2.5% of capital disbursements *or* revenue disbursements). The plus part seemed to be the annual fee.

I'd expect private types such as a lawyer to want the minimum of the guideline. Likely too, they'd bill the estate for any specialised activity.


In contrast ... the executors in my family have taken far less than the guideline as it's family or a close friend.

I have had a neighbour talk about an unscrupulous executor in his wife's family that over-charged and used any vague sections to their benefit. Like so many other things, there are no guarantees ... :biggrin:


Cheers


----------



## fraser

The only reason that we I had to probate my mother's estate was because one of her assets was in her name only. All other assets were jointly owned (in order to avoid probate fees, etc). This is the reason why the bank not only 'froze' her the one bank account that was solely in her name but also the safety deposit box. The box was opened in the presence of both surviving children and the contents were inventoried. But, It was not frozen until I presented a death certificate and in fact I had been into the box prior to getting the death certificate..I was on the list of people who had access to the box.

My understanding was that had we been able to have the one remaining TD swictched to joint prior to her death we would not have had to do probate. It was the bank who forced us to probate because they froze the assets.

I certainly did not expect any compensation for being an executor however my work was very straightforward because the will was in order, assets identified, and funeral arrangements were pre arranged.


----------



## humble_pie

fraser said:


> I certainly did not expect any compensation for being an executor



good for you. I certainly did not expect, either. In fact, i've never heard of such a thing as family members charging other family members for their "services."

this must be new or else it's a ROC trend? sounds tacky to me. Whatever happened to close family members serving as executors to honour their lost relative & stand by the rest of the family?

on the other hand i've once or twice been asked by non-family to serve as executor. In those cases, the party asking did not know anything about the work involved, one actually said she was believing that execution of a will was a simple matter that would take no longer than a month. So in those cases i did have to politely decline.

it is true that there are many complicated wills. IMHO those testators should name professional executors in their wills.

PS fraser thankx so much for all the evidence that joint accounts pass more quickly & more easily to the heirs. This must be another reward of one's children finally growing up.


----------



## sags

My dad's "simple" estate, involving no real estate or valuable assets, and only a $10,000 life insurance policy and $12,000 cash in a savings account........barely escaped being forced into probate.

The bank's legal department took several weeks to determine probate wasn't necessary, but the cash in my dad's account was frozen except for the bills I submitted to them.

From my experience, it varied greatly to whom I was talking at the bank. 

The original bank representative quit the bank and left everything in limbo in a box in storage. I went through several other representatives before it was finally settled one year later.

My impression was handling estates wasn't something anyone at the bank wanted to do, and it was the last person hired at the bank who ended up with the duty.

For that reason, I had no confidence the person at the bank had the foggiest idea what they were doing.

To distribute the last bits of the estate............less than $500 divided by 5 beneficiaries, I had to get each person sign a waiver relinquishing any claims to the bank, and get 5 money orders made out and the bank mailed them to addresses that I supplied.

Dad's estate was simple and being retired I had lots of time to run around all over getting signatures. If it was a complicated will...........I would still be doing it years later.

It took my wife's parents estate 5 years to finally close and the land distributed into their names.


----------



## AltaRed

HP, it depends on family dynamics AND the complexity of the affairs. In the former situation, if there is terrible infighting and court cases, the executor should either resign and have it turned over to a professional (preferred) or charge a fee. I know executors who have experienced that nightmare. In the case of complex estates, usually with business complexities, it is best turned over to a professional. 

People need to have more awareness of what is involved in settling an estate so they can name the appropriate executor (professional or otherwise), but that is utopia. In some cases I've seen, executors don't even know they are executors until the person has died!!!

P.S. One more thing regarding joint accounts et al. That is a good example of what to do provided they are JTWROS, but I have been told that if Real Estate is involved, RE has to go through Probate regardless of type of ownership. That may not be true in all provinces but it sure is in Alberta. One needs to be aware of the provincial processes for the location of the estate.


----------



## Eclectic12

humble_pie said:


> ... In fact, i've never heard of such a thing as family members charging other family members for their "services."
> 
> this must be new or else it's a ROC trend? sounds tacky to me. Whatever happened to close family members serving as executors to honour their lost relative & stand by the rest of the family?


YMMV ... especially where the estate is complicated taking lots of effort/time and/or if there's an obnoxious factor.

For example, unlike my parents - I would not have spent three days shorting through papers to find what was needed for the estate or held off the second husband's relatives who felt they were entitled to back a truck up the house to clean out the furniture, regardless of what was in the will as well as other things - for simply the out of pocket expenses. I would have tacked on a bit (but likely nowhere close to the guideline amounts).

If I recall correctly ... the 2nd husband's relatives challenges added about three years to the process.


Cheers


----------



## GreatLaker

In my first will I stated that no compensation was to be paid to the executor, on the basis that it was a family member that would inherit a large sum. Later I realized how much work could really be involved in being an executor, so I removed that clause.


----------



## gibor365

> The only reason that we I had to probate my mother's estate was because one of her assets was in her name only.


 Thus, I understand that if all my mom accounts/GIC is joint with, no probate will be needed?


----------



## AltaRed

gibor said:


> Thus, I understand that if all my mom accounts/GIC is joint with, no probate will be needed?


Likely depends on the rest of her assets.


----------



## gibor365

AltaRed said:


> Likely depends on the rest of her assets.


No other assets at all ... even her cellphone on my wife's name account  ... the only non-joint asset is TFSA when I'm the only beneficiary


----------



## carverman

gibor said:


> No other assets at all ... even her cellphone on my wife's name account  ... the only non-joint asset is TFSA when I'm the only beneficiary


You may then ok to execute her will without a probate.



> Certain assets of an estate do not require probate in order to be transferred. For example, joint accounts will generally transfer directly to the surviving joint account holder on the death of the first (depending on the terms of the account agreement).





> Registered accounts (RRSPs, RIFs and TFSAs) and life insurance policies that have designated beneficiaries will also generally pass to the named beneficiary outside of the estate, meaning that probate is not required for their transfer.


If your mother has no debts that require to be paid off first, and no assets held by her alone, then you should be able to just carry out her wishes in her will without probate, I would think.

Make sure she has a will though, even a handwritten one, dated and witnessed by two individuals, that are not beneficiaries or recipients of any of
her personal possessions. The more of her possessions that can be transferred to her family before her death, the less value her estate will have at the time of her death. 

You really don't want to pay probate fees on her estate if you can avoid them. 

http://business.financialpost.com/p...ment/inheritance/to-probate-or-not-to-probate


----------



## gibor365

> If your mother has no debts that require to be paid off first, and no assets held by her alone, then you should be able to just carry out her wishes in her will without probate, I would think.
> 
> Make sure she has a will though, even a handwritten one, dated and witnessed by two individuals, that are not beneficiaries or recipients of any of
> her personal possessions. The more of her possessions that can be transferred to her family before her death, the less value her estate will have at the time of her death.


She doesn't have also any debt and assets, no car , no real eastate.... except bank accounts joint with me and TFSA where I'm the only 1 beneficiary,


> more of her possessions


 what kind of possession it can be? I sponsored her and everything in her rented apartment I bought (some simple furniture, laptop and that's it ).

I'll print free will from Canada Wills and give her to sign...hopefully she will find witnesses


----------



## carverman

gibor said:


> She doesn't have also any debt and assets, no car , no real eastate.... except bank accounts joint with me and TFSA where I'm the only 1 beneficiary, what kind of possession it can be? I sponsored her and everything in her rented apartment I bought (some simple furniture, laptop and that's it ).


 By "more of her possessions being transferred before death:" means that if she has any personal things of value, such as diamond and gold jewelry, valuable
paintings etc..that could be considered of "some monetary value" by the state, it would be best to transfer ownership of these items before the time as gifts.

You can make monetary gifts to members of your family that don't have to be declared as income.
Better to have her make a simple will than be intestate (no will) when the time occurs. If somebody asks, you got her witnessed will as proof she made a will
even if her estate is "0 dollars" at the time.

That is what I was trying to say. :biggrin:


----------



## gibor365

I'm still unclear regarding Affidavits.... Should I go same time with both witnesses to Commissioner with Affidavits or withesses can just fill out Affidavit form and go to Commissioner on their own? Should Commissioner see my Will?


----------



## carverman

gibor said:


> I'm still unclear regarding Affidavits.... Should I go same time with both witnesses to Commissioner with Affidavits or withesses can just fill out Affidavit form and go to Commissioner on their own? Should Commissioner see my Will?


Why do you need an affadavit and why does a commisoner need to see your will? Only the executor needs to see your will. Now if you feel there is some complications, then you
may want to discuss those with a Estate Law lawyer. I think there is one online. http://www.lawblogs.ca/estate-law-canada/


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## AltaRed

Depending on province (probably), a Will being probated, in Alberta at least, needs to be accompanied by signed Affidavits of the witnesses essentially saying they believe the person signing their own Will was of sound mind when signing their Will. Failing that, the court would essentially hold a mini-trial cross-examining individuals who knew the deceased at the time of signing a Will that they believe the person was of sound mind when signing the Will.

I went through this experience a month ago in Alberta with the death of my mother. Her will was done a very long time ago before such Affidavits were the norm and we (current lawyer assisting us in Probate) needed to hunt down at least one of the original witnesses... to swear on an Affidavit prepared now that the witness believed mother was of sound mind at the time of signing the Will. We got lucky the original lawyer was still alive. Why this particular issue is not highlighted in legal blogs based in Alberta is surprising because there may be tens of thousands of very old wills still around in the same situation and the clock is ticking.

I cannot comment on what other provinces do but I find it difficult to believe Alberta is an outlier in this regard. Best that folks Google their own information in the province where they reside. If such as requirement exists in the province where Gibor lives, I suspect it would be best to have the witnesses to the signing of the Will get the Affidavits prepared and taken to a Notary (Commissioner of Oaths, or equivalent) for signing and sealing. The Commissioner should not have to see the Will itself or its contents.


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## gibor365

carverman said:


> Why do you need an affadavit and why does a commisoner need to see your will?



because I've read below


> Completing the Affidavits is recommended but not mandatory for your Will. When you die, your Will needs to be legally verified by the Court (i.e. probated). Part of this process requires your two (2) witnesses to provide documents called “Affidavits”. An Affidavit is a document containing statements about how your Will was signed. Each witness swears on a Bible (or otherwise affirms) in front of a Commissioner for Taking Oaths in your Province that the statements in the Affidavit are true. Then the witness and the Commissioner sign the Affidavit. A Commissioner can be a Notary Public or a Lawyer in your Province. They may charge a nominal fee for commissioning the two (2) Affidavits (ranging from free to $30 or $40). To avoid problems associated with getting these affidavits from your witnesses after you die, your two (2) witnesses should sign these affidavits immediately after signing your Will. We have provided downloadable Affidavit templates which your witnesses can use. Simply complete these Affidavits on your computer, print them out and have your witnesses appear in front of a Commissioner to sign them. Keep the completed affidavits with your Will.


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## AltaRed

Which confirms what I have just experienced. Don't mess around with such things. Give your executor a break and get the Affidavits now.


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## gibor365

> the witnesses to the signing of the Will get the Affidavits prepared and taken to a Notary (Commissioner of Oaths, or equivalent) for signing and sealing. The Commissioner should not have to see the Will itself or its contents.


So if I understand correctly, the witness can just go to Commissioner anytime with filled affidavit form ? and I shouldn't be there?


I also found that "


> A holograph Will that is 100% in your own handwriting does not need to be witnessed (make sure you date it and sign it though)."


http://estatelawcanada.blogspot.ca/2010/07/who-can-witness-will.html
Thus, if my mom wouldn't want to look for withnesses , I'll give her homework  , to handwrite (copy) Will we gonna print from www.canadawills.com/
(it just 1.5 pages)


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## AltaRed

I am confused. Are you talking about your own Will or that of your mothers? If your own mother's will, based on the above discussion, why would you be there at all? Nor does she need to be there but it would be helpful so the Commissioner/Notary can acknowledge that she exists before dealing with the witnesses and their Affidavits. But she probably will not be permitted to be in the same room when the Affidavits are signed and sealed since they are there to attest to her sanity.

A will that is not probated does not need any of that stuff. It is only the courts what will insist on the Affidavits. If there is likely no chance of Probate, there is no court and there is no need for Affidavits of witnesses. You need to keep this stuff in its proper perspective.

Added: Advice from an Internet forum is all well and good, but if you really do not know what you are doing, get yourself a lawyer/Notary to make sure the right stuff is done correctly. Don't be pennywise and pound foolish on important matters.


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## gibor365

> I am confused. Are you talking about your own Will or that of your mothers?


 About both 
Both wills are pretty straightforward: everything to me (my mom's will), everything to my wife and than 50/50 to both kids (mine will).
COnsidering that except joints with me HISA/GIC and TFSA, my mom doesn't have any assets - I don't think court would like any probate.
About myself, I'm not sure... we own house (joint with my wide), car (on my name), joint HISAs/GICs and also only my individual HISA account (to be in 100K CDIC brakets), registered accounts (where my wife is beneficiary) and I think that's it.... Not sure if court would like a probate when I pass away.... 
I will sign witnesses on mine will, but The problem that I don't feel comfortable to ask witnesses to miss work day in order to go to Commissioner for affidavit....
This is why I was thinking about just copying in handwriting from template (so called Holograph Will).... no problem if to give withesses to sign , but without affidavit...


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## AltaRed

Your mother's case seems simple enough for a Will, but what have you (or rather she) done about a Power of Attorney and Personal Health Directive for herself?

There is little doubt YOUR will would have to be probated so do it right and have a proper Will done with signed/sealed witness Affidavits. You will give your executor and surviving family headache and grief by not processing the right paperwork. Don't leave them being pissed off and angry with you just because you 'cheaped out'. That was something my own Father might have done when he was alive had someone not applied a 2x4 piece of lumber to the side of his head AND I would have cursed him to this day.

Further, with a wife and children, you (and your wife) both need to have Powers of Attorney done AND Personal Health Directives for each of you, and provisions in each of your Wills for guardianship of any minor children and provisions for setting up a trust for minor children you may have. 

No excuses about having your witnesses missing work to get Affidavits signd and sealed. People can always make a 'start of day' or 'end of day' appointment with a Notary/Commissioner of Oath to minimize work loss. You've had mostly good advice throughout this thread. Do it right.


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## gibor365

Just curious if "video Will" is valid  It's pretty simple , to print Will template and record myself with camcorder ... such will won't get lost


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## carverman

^^^
I think you've been watching too many movies maybe? Where the executor of a video will gathers the eager benefiiciaries and runs the video that has the testator of the will
start off saying"

"I'm glad to see everyone gathered here today to read my will...of course, some of you will get some of my estate..but for you no good <*wife, brother, sister*> that couldn't spare the time of day for me when I was living, now sit with your greedy hands open...I give to you what you deserve.."NOTHING!"

Now for those of you that respected me and showed up at least once a year ..I will give you each a calendar and a timex watch to remind you of missing these appointments when you had a chance.

The rest of my estate has been given away to charity...so there "suckers'..better luck next time!..ha-ha-ha..{LoL}:highly_amused:


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## gibor365

> I think you've been watching too many movies maybe? Where the executor of a video will gathers the eager benefiiciaries and runs the video that has the testator of the will


 no, actually I don't recall I've seen such a movie at all....

I just was reading some articles saying that holograph will (handwritten) is very old-fashioned and grom 19th century, so imho the current process with witnesses, lawyers, commissioners (where you have physically to go, to take time off etc) is also not super-modern.... Thus, just came to mind...why just don't record your will (you can always find template on the Web that wording will be right) and if needed to record withnesses .... such video file even can be send electronically to local court for future need.... 
Pbviously all those lawyers and courts and government wouldn't like to accept it, as they making tons of $ from regular taxpayers...
P.S. I just don't understand why needed those "probates" if no one is challenging the Will?!
And why if there is no Will, to set a default procedure that ALL goes to surviving spouse and than to kids in equal parts?!


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## carverman

gibor said:


> Obviously all those lawyers and courts and government wouldn't like to accept it, as they making tons of $ from regular taxpayers...
> P.S. I just don't understand why needed those "probates" if no one is challenging the Will?!
> And why if there is no Will, to set a default procedure that ALL goes to surviving spouse and than to kids in equal parts?!


i think it needs to be on paper as the signature has to be authentic and witnessed..otherwise it could open the estate to fraud..possibly? 

I think its pretty much "standard procedure" if you die intestate (without a will)..you could be owing hundreds/thousands to creditors and maybe if depressed enough you don't want to wait for the "grim reaper" to eventually claim you. 

If you die intestate..once people/creditors know about your death..all kinds of claims could be made against your estate in a world where scamming and fraud is the normal. 

The probate court (for a fee of course) will separate the legitimate claims (ie mortagage) from the phony claims such as..

"yes..I did some work for X a few years ago..and he/she didn't pay me for my work..so here is my bill..submitted to "x estate".

Anyway, you get the idea.


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## Eclectic12

carverman said:


> i think it needs to be on paper as the signature has to be authentic and witnessed..otherwise it could open the estate to fraud..possibly?


If it's not witnessed ... how would anyone know if some survivor or relative wrote one up? The witnesses won't stop fraud but it will make it more difficult.


Cheers


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## gibor365

Eclectic12 said:


> If it's not witnessed ... how would anyone know if some survivor or relative wrote one up? The witnesses won't stop fraud but it will make it more difficult.
> 
> 
> Cheers


If i video record myself (even in withnesses present) , wouldn't it be more reliable?


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## Moneytoo

gibor said:


> If i video record myself (even in withnesses present) , wouldn't it be more reliable?


What if a relative made you do it under a gun? lol


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## gibor365

and what if you wrote holograph will under the gun?! As per law , you don't even need withnesses....


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## AltaRed

Family law in each province is designed and written by lawyers, and revised from time to time to: 1) take into account trends in case history from court cases, 2) real or perceived social inequities, and 3) provide a predictable? process that perhaps 95% of estate settlements can follow with reasonable certainty and outcomes. It is a travesty (and selfish and inconsiderate) for anyone to leave their spouse and/or heirs and/or beneficiaries, and last but not least, their executor, with a mess to clean up after they die. 

Just accept the system for what it is and get the routine, done a million times documents in place the way everyone should.


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## gibor365

> It is a travesty (and selfish and inconsiderate) for anyone to leave their spouse and/or heirs and/or beneficiaries, and last but not least, their executor, with a mess to clean up after they die.


 Too many people (if not majority) have a mess during their lives.... not to mention death


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## OhGreatGuru

gibor said:


> and what if you wrote holograph will under the gun?! As per law , you don't even need withnesses....


Yes, a holographic will is legal. Based on case law. But no one particularly recommends it. In the absence of witnesses you may have to prove its validity by handwriting analysis; or that it was not coerced; or that the person writing it was of sound mind at the time.


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## Toronto.gal

Wow, 100+ posts, so does that mean your wills are done gibor?! You know the quote '....we have only today, let us begin'? Lots of good info. here btw.



Moneytoo said:


> What if a relative made you do it under a gun? lol


He would do so with a добросовестный smile. :biggrin:



gibor said:


> Too many people (if not majority) have a mess during their lives.... not to mention death


Indeed, but that's no excuse to dawdle in such matters, though surprising how many do [moi included, though in the past].

Speaking of holographic wills [not valid in every province?], I was reminded of case below that I think carverman mentioned some time ago elsewhere [not here?].

*“...perhaps the most dramatic example” of a holographic, or handwritten, will ever accepted.” *
http://law.usask.ca/news/LawyersWeeklyTractorWill10May13.pdf

*carverman:* was not familiar with the Taxman song - the music was inspired by Batman's theme song. LOL.


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## fraser

The real issue is (and we were guilty of this for years) is that too many people talk about doing wills or do them in a haphazard or non acceptable format and not enough people actually get them done. Among other things, having an up to date, legally acceptable will is an act of kindness and love.

We talked about it for too long. Then we just did it. Got the kit, understood the basics enough to have a discussion with a lawyer, and then completed the wills and supporting documents. That was five years ago. Now it is time to revise the will because of family circumstances and a desire to change the executor.

I must say that when preparing our will the lawyer brought up a number of salient issues that we had never considered.


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## carverman

gibor said:


> Too many people (if not majority)* have a mess during their lives*.... not to mention death


This happens a lot..nobody is prepared to die unless you have a terminal disease and given x weeks to live. Some people can leave a bit of a mess
with their estate...that is why we have probate courts.


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## carverman

Moneytoo said:


> What if a relative made you do it under a gun? lol


LOL! "This is my last will and testament and I am doing it of my own free will <wink-wink> "..."now.. um...<insert relative/beneficiary here> "let's get down to business... and please put that gun to my head.... away!":biggrin:

and this other possible will making scenario...

"Thanks for all that good food and <whisky/beer/wine>, yes, I really should make a video will (hic!), now..who is my favourite <son/daughter/cousin/nephew/ex-wife?>...

"I, being of sound mind and body (hic) leave all my worldly possessions to my favorite nephew ..because he has been so good to me...not
like those others that can't spare the time.":biggrin:


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## carverman

Toronto.gal said:


> Wow, 100+ posts, so does that mean your wills are done gibor?! You know the quote '....we have only today, let us begin'? Lots of good info. here btw.
> 
> 
> He would do so with a добросовестный smile. :biggrin:


Harasho! Is Russian way.. no?...more vodka please..hold pen please..is signing ben...ben...how you spell ...?






> *carverman:* was not familiar with the Taxman song - the music was inspired by Batman's theme song. LOL.


Vot! You never heard the Beatles sing the Taxman..maybe "Paperback writer"? ..no?


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## Karen

> OhGreatGuru;692529]Yes, a holographic will is legal. Based on case law..


.
It is not true that holographic wills are legal in all provinces. They are not valid in British Columbia, as my former sister-in-law learned the hard way. Her common-law husband of 25 years died, leaving his substantial estate to her, with the understanding that she would look after their two underage children. His two middle-aged children from former marriages fought it in court and won a huge share of the estate, on the grounds that the will was holographic and, therefore, invalid. The estate was divided between the two adult children and the two underage dependent children, with my sister-in-law getting only support payments for the two children via the Public Trustee.


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## carverman

Karen said:


> .
> It is not true that holographic wills are legal in all provinces. They are not valid in British Columbia, as my former sister-in-law learned the hard way. Her common-law husband of 25 years died, leaving his substantial estate to her, with the understanding that she would look after their two underage children. His two middle-aged children from former marriages fought it in court and won a huge share of the estate, on the grounds that the will was holographic and, therefore, invalid. The estate was divided between the two adult children and the two underage dependent children, with my sister-in-law getting only support payments for the two children via the Public Trustee.


Karen, I'm not sure about a 'video will" that gibor is discussing..this is right out of a Hollywood movie, but in Ontario at least, you can make a "holographic handwritten will" under
certain circumstances without the presence of witnesses if you know you are near death and there is no time left...here is an example of one...



> a Saskatchewan farmer who was *pinned under his tractor on June 8, 1948.* On the tractor’s fender, he scratched out the words, “In case I die in this mess, I leave all to
> my wife – Cecil Harris”.
> *The court considered this to be a valid holograph will,* and* the tractor fender was admitted into probate*.
> 
> The fender is now permanently on display at the University of Saskatchewan Law Library. ''


http://www.advocacycentreelderly.org/appimages/file/Holograph Wills.pdf


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## Karen

I remember reading about that very interesting case before, carverman. I was aware that some provinces recognize holographic wills, but I was just pointing out that not all provinces do, as it's important for people to know that. My sister-in-law's common-law husband spent many years in Manitoba where they were legal, and he just assumed that they would be here in BC as well - a serious mistake with huge negative consequences for the person he wanted to inherit his estate.


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## Karen

I had an experience which is a good example of why we should all have wills. When my late husband, Bill, died of pancreatic cancer, I knew that all our assets were either in joint names with right of survivorship or named each other as beneficiaries, so there was no need to have his will probated. However, a few months later, I realized that we had both forgotten about a lien that my husband held on his ex-wife's house in Anchorage where they had lived during their marriage (as collateral on some money she owed him as part of their property settlement.) It was only for $15,000, and I decided that I wanted to cancel the lien, as I didn't need the money and it would just complicate my life, but the lien was in my husband's name alone. I sent her an email offering to cancel the loan on the condition that she would pay any expenses incurred in my doing so. She was very pleased and arranged to have a retired lawyer friend look after it for her.

The first thing we had to do was to have the lien transferred to my name, which meant having Bill's will probated in Alaska, even though it had been unnecessary to do so in BC where he died. Then the lawyer took the necessary steps for me to sign off on the lien. The whole thing was simple and inexpensive, but if Bill hadn't had a will, it would have been quite the opposite as he was no longer alive to remove his name from the title. So what turned out to be a simple process would have become very complex and very expensive - all for a relatively insignificant debt of $15,000, but she would not have been able to sell her house without getting it resolved.


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## fraser

When my mother died in BC I did the probate. Will was in order, and I had previously gone to the LTO and had the property moved from her and my father (who preceeded her) to her. No lawyer involved.

I did however have occasion to consult a lawyer on another family matter. He knew that we had done the work ourselves and that we there was an up to date will etc. His question...why did your parents have one?

He said he wanted to know, and always asked, because so many people did not. Especially since my mother had dementia. He said that IF there had not been a proper will it would have taken six months or more to sort out, some large legal bills, but more importantly a great deal of emotional anguish. 

This was the very last kind thing that my parents did for us and we appreciated it so very much. We will do the same for each other and for our children.


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## AltaRed

fraser said:


> This was the very last kind thing that my parents did for us and we appreciated it so very much. We will do the same for each other and for our children.


As it was with each of my parents. My wife and I did wills as soon as we had children in our mid-20s. As I mentioned upthread, don't forget POAs and Personal Health Directives too.


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## carverman

Karen said:


> I remember reading about that very interesting case before, carverman. I was aware that some provinces recognize holographic wills, but I was just pointing out that not all provinces do, as it's important for people to know that. My sister-in-law's common-law husband spent many years in Manitoba where they were legal, and *he just assumed that they would be here in BC as well* - a serious mistake with huge negative consequences for the person he wanted to inherit his estate.


Assumptions can get people into a lot of trouble...especially with the "BC Culture".:biggrin:


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## carverman

AltaRed said:


> As it was with each of my parents. My wife and I did wills as soon as we had children in our mid-20s. As I mentioned upthread, *don't forget POAs and Personal Health Directives too*.


and *final disposal wishes as wel*l....shall it be expensive earth interment with headstone ..very expensive costing thousands ($10K - >$25k) today..
or a simple "direct to cremation" no frills funeral...or even leaving your remains to medical science, where parts can be pickled in formaldehyde...
and lastly IF you are a billionaire, (like Warren Buffett or Bill Gates)..you could even be...
cryogenically frozen in the hope that someday advancies in science can unfreeze you, reverse genetic disposition and...bring you back to life better than you were before....

reminds me of James Taylor's song " the Frozen Man" 



> My brothers and the others are lost at sea, I alone am returned to tell thee.
> Hidden in ice for a century to walk the world again, Lord have mercy on the frozen man.
> 
> Next words that were spoken to me, nurse asked me what my name might be.
> She was all in white at the foot of my bed, I said angel of mercy am I'm alive or am I dead?
> 
> *It took a lot of money to start my heart, to peg my leg and to buy my eye*.
> The newspapers call me the state of the art, and the children, when they see me... cry.
> 
> I thought it would be nice just to visit my grave, see what kind of tombstone I might have.
> I saw my wife and my daughter and it seemed so strange,
> both of them dead and gone from extreme old age.
> 
> See here, when I die make sure I'm gone, don't leave 'em nothing to work on.
> You can raise your arm, you can wiggle your hand, not unlike myself,
> and you can wave goodbye to the frozen man.


money conquers all obstacles..you just need to have enough of it.


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## carverman

fraser said:


> Especially since my mother had dementia. He said that IF there had not been a proper will it would have taken six months or more to sort out, some large legal bills, but more importantly a great deal of emotional anguish.


Dementia seems to be a common problem as we age. The problem is that if we wait too long to do up our wills, and dementia is firmly inset..where we don't know who we are,where we are.... or anybody that comes to visit...This is never a good time to think about a will..usually the first few lines of the will cannot be verified any more..and a lawyer has to be present to write the will and ask questions and testify in probate that they acted on your behalf
because you were no longer able to do it on your own. 

ie: This is the last will and testatment of Me (name). Being of sound mind.....I hereby write my will as follows.....


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## fraser

When my father first suspected that my mother may be on her way to having dementia he ensured that their individual wills and POA's were updated, completed, by a notary in BC. This, along with pending changes (at that time) in BC legislation made this a very prudent decision. Later, when she was in full stage dementia the will and the POA became invaluable. I was able to handle all issues with her survivors pension and with the DVA (she was a UK Army vet). 

Until this time, I did not understand how valuable these documents were and how much time and anguish they erased from the process.


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## AltaRed

fraser said:


> Until this time, I did not understand how valuable these documents were and how much time and anguish they erased from the process.


That is the fortunate and unfortunate part. Fortunate because if one has been able to have the experience using the documents with a parent or other close relative, it becomes patently obvious to get one's own affairs in order pronto. Unfortunately, for those who do not have direct experience of having to deal with it, not enough people take these matters seriously, no matter how often professional advice continually tells us to do it without delay.

FWIW, I have had my documents changed any time I changed province of residency. That is a real pain in the *** because there are enough differences in Family Law to make implementation of the various documents more problematic. The will, etc, is still valid anywhere in Canada but the processes to deal with these documents vary from province to province. The short of it is that Provincial courts do not like dealing with out-of-province documents. 

It is even more of an issue ex-Canada where the right answer is to get Codicils done in the country/state of residency that attach to the Canadian will. Codicils can cost as much as a will because the professional preparer has to interpret the existing Canadian will before being able to prepare the Codicil that melds 'local law' with the Canadian jurisdiction. It gets messy. Even within the USA, some states are dramatically different than others. Some have community property laws while others don't. One of the best ways I think to really piss off your heirs, executors, et all is to die while resident in a foreign jurisdiction and have no paperwork in place. That is clearly one way to ensure you are hated.


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## fraser

The differences between provinces are significant. And much more significant if there is no will and assets are divided according to a legislated formulae.

Our experience in being the executor of several wills in BC and recently completing our wills, PAO's, medical directives in Alberta made us even more aware of some of the differences between provinces.

We waited too long. We got it done but it was on our 'to do' list for a number of years. We were in fact failing our children by not getting it completed and completed in a proper manner.

My best advice to people would be to stop talking about it and get on with actually doing it. And when you do it, do it properly. Get good advice from someone truly knowledgeable and experienced in the subject.....not you neighbour's brother-in-law who has a friend who knows something about the process. 

If you do not do this properly it will cause your remaining loved ones more emotional angst, more expense, and your wishes may not even be followed at the end of the day.


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## gibor365

> The differences between provinces are significant


 DOn't you find it stupid?! Why not to have one Federal law?


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## AltaRed

gibor said:


> DOn't you find it stupid?! Why not to have one Federal law?


Because Family Law is the jurisdiction of the Provinces, not Federal, per the constitution. Same is true regarding marriage, divorce, guardianship, etc. Every province thinks it has a better solution. 

Essentially the same thing in the USA. No point losing sleep over the system. It is what it is.


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## derekmcl

*10 Reasons that you should have a Will*

Sorry that I am late to the party, but here is a list of 10 reasons that you should have a Will, that I have excerpted from my law firm's blog:

1. If you die without a Will, your children won't have legal Guardians!
2. If you die without a Will, nobody will prepare your tax return for you!
3. If you die without a Will, nobody will know what to do with your body!
4. If you die without a Will, your bank accounts will be frozen!
5. If you die without a Will, nobody can get into your Safety Deposit Box!
6. If you die without a Will, your family will fight over your stuff!
7. If you die without a Will, the Courts will decide what happens to your stuff!
8. If you die without a Will, your kids will blow all of your hard-earned money!
9. You will save money! You will pay a lot more in lawyers' and accountants' fees if you die without
a Will!
10.It's cheap! Wills are somewhat standardized because we are all basically the same once we
are dead!

I admit that my points are somewhat tongue-in-cheek, but hopefully my list will help to persuade you that having a Will is a necessity!

Best Wishes!
Derek McLauchlan


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## OhGreatGuru

Nice list. But

_1. If you die without a Will, your children won't have legal Guardians_!
Not really true. Guardians are appointed by the courts, not by a Will. But you may express your preferences in your Will.

_2. If you die without a Will, nobody will prepare your tax return for you!_
If your dead, you don't care. But your beneficiaries will care, because your estate can't be settled until this is done. Worst case scenario an executor will be appointed by courts, who will suck up estate in fees.

_3. If you die without a Will, nobody will know what to do with your body!_
True. Somebody will eventually make a decision, but it may not be what you wanted.

_4. If you die without a Will, your bank accounts will be frozen!_
True, except for JWROS accounts. This will make settling your estate very difficult.

_5. If you die without a Will, nobody can get into your Safety Deposit Box!_
True. Even if you have a joint SDB, bank can restrict access. If you have a spouse, they should empty the SDB before telling the bank you're dead.
_6. If you die without a Will, your family will fight over your stuff!_
Depends on whether you have an valuable "stuff" or just debts.

_7. If you die without a Will, the Courts will decide what happens to your stuff!_
True.

_8. If you die without a Will, your kids will blow all of your hard-earned money!_
The kids can't even get their hands on the money to blow it, until courts appoint an executor and decide how estate should be distributed. It's more a question that provinces have fixed formulas for distributing assets of a person who dies intestate, and these formulas generally give priority to spouses and children. If you don't want all your assets to go to them, you need a will.

_9. You will save money! You will pay a lot more in lawyers' and accountants' fees if you die without
a Will!_
Actually "you" will not pay more because you will be dead. Your estate will, for which your beneficiaries will not thank you. And they may put your remains in a pauper's grave because of the money they had to blow on estate fees.

_10.It's cheap! Wills are somewhat standardized because we are all basically the same once we
are dead!_
True.


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## livewell

interesting thread, that got me thinking about in the event of my demise would my will need to be probated? House is in joint names, and RRSP TFSA's etc have named beneficiaries however I have a sizable non-registered brokerage account in my name. (I have no idea why I set it up in my name only 20+ years ago, probably did not even think about the options.) Am I right in thinking this would likely be frozen and my wife would need to probate the will to gain access to this account?
If so can I just ask the brokerage to change the account to a joint account or would this trigger capital gains? Can I name her as a beneficiary of the account, would that be sufficient to avoid probate?


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## AltaRed

Yes, that taxable account would be frozen pending probate. It is easy enough for you and your spouse to open a JTWROS account and for you to provide the brokerage with a Letter of Direction directing them to transfer all the assets to the new account. And no, it won't trigger capital gains. But remember that you will still have to attribute the assets and the income from the assets as 100% to you on your tax returns. Don't try to get cute and start income splitting.


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## ian

There are lots of bases to cover when assigning beneficiaries in order to avoid probate. As an example...if you are a member of a stock option plan you can, and should, designate a beneficiary. Did not think of this until we went through the process of updating our will.


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## derekmcl

*Good Job!*

Great job fleshing out my list OhGreatGuru! I appreciate it!

On the issue of guardianship, I was speaking more to the "hang time" between the time of death and when the Courts get around to naming permanent guardians for your children. During that period of time, guardianship of your children is in limbo. My understanding is that, at least here in BC, it falls upon the Ministry of Social Services to appoint temporary guardians.

All that can be avoided by naming guardians in your Will!


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## carverman

Just had my will redone last month. Cost $400 + Hst ($452) and the POA for property and personal care. 

I had to change my executor here in Ottawa, (the one that has to do all the running around and filing in the court house here), as the paperwork has to be filed in the county that where you lived and (presumably died) in Ontario. 

Most of the will document is standard boiler plate clauses and 4 pages long. My lawyer filed the original in his office
and I and my executor/backup executor have notarized TRUE copies of my will and POAs. 

Apparently any copies have to be TRUE copies, notarized by the lawyer (if the lawyer is also a public notary in Ontario), or a public notary with a seal that can be affixed over the notary's signature on the cover page for the true copy of my will. My true copy of the will also indicates which lawyer has retained the official signed original of my will.

It's getting more complicated in Ontario. Besides having to pay probate fees (now called estate taxes), there is a lot of legal stuff that has to be done to release any frozen assets if the bank accounts are not joint.
The days of just writing on a piece of paper your wishes for your last will and testament are long gone. 
Now the Ontario gov't wants a piece of your estate if you don't have beneficiaries to assume ownership of
your assets when you go.

In Ontario, it seems that most financial institutions or those that have to see the will, (not the probate court which needs to have the original signed will filed), need to see a true copy, not just any copy that can be made on any photocopy machine.


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## AltaRed

carverman said:


> In Ontario, it seems that most financial institutions or those that have to see the will, (not the probate court which needs to have the original signed will filed), need to see a true copy, not just any copy that can be made on any photocopy machine.


I would suggest that is the case pretty much anywhere. Had to use 'true' copies for all the financial institutions in AB when my mother died in 2015. It's not a big deal. We took the original to the bank that knew my mother and our family and they stamped a number of 'true' copies for us. Some places may insist on notarized copies but we did not run into that dilemma. And a few other businesses just accepted a photocopy (never unstaple the original when making copies).


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## carverman

AltaRed said:


> I would suggest that is the case pretty much anywhere. Had to use 'true' copies for all the financial institutions in AB when my mother died in 2015. It's not a big deal. We took the original to the bank that knew my mother and our family and they stamped a number of 'true' copies for us. Some places may insist on notarized copies but we did not run into that dilemma. And a few other businesses just accepted a photocopy (never unstaple the original when making copies).


Up to 2010, I just used one of the available cheap will kits. I know that in Ontario, the will does not have to be registered. 
However, some complications in my life, living alone without a partner, etc; prompted me to go to a lawyer in 2010 
to get an official will drawn up. That cost me $500.
Up to then, all I had was the original will kit that I had done myself and had a couple neighbours witness my signature.
This year, I decided to get it drawn up again because of a change in executor and changes in some cash legacies.

I sent my former executor a registered letter advising of the executor change, that I had a new will drawn up, 
and to destroy the copy of the my old will, (which was not a true copy in the first place). 

Because of possible future legal issues, it is always advisable to inform by registered mail of any changes of appointed executors.

That way, a copy of letter is maintained (along with a registered mail postal receipt), with the true copy of the new will in your possession.
This way it avoids any future conflicts with people named as executors between the former and new executor where the old executor named in a previous will has been removed from acting as executor and may not know about it. 

Didn't realise until recently how much things have changed over the years in regards to your will. 
Now it has to be written in such a manner that it takes a lawyer to understand what's in it. 

However with the true copies requirement for financial institutions these days, it's a good thing that my lawyer advised me to get some from him. 
He didn't charge me any extra for these, all part of his service for drawing up my new will.
Now, I have a true copy, so does my executor, and also my brother in Toronto appointed as co-executor.


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## AltaRed

We re-did our wills when we moved to BC from Alberta. There is enough differences in Family Law between provinces that it is highly recommended wills be re-done. It makes it much easier for an executor to get Probate if the will is done in the same jurisdiction as where the testator lives. Our wills are also registered with Vital Statistics in Victoria. There is a form online that can be sent declaring date of the will, etc, etc. that is in force. When the executor goes to court for Probate, all the court has to do is to check with Vital Statistics to see that the dates/info matches what is presented to the court and presto... probate is done. Remember that Probate is simply the process that legitimizes the Will as the last true will of the testator (and the mechanism to collect estate/probate fees). It is that document (with the weight of the court behind it) which provides the proof necessary for the executor to carry out all his/her duties.

I have always said to people who do not have proper Wills done.... 'why do you hate your loved ones so much that you don't have your affairs in order?' I think it is cruel, ignorant and irresponsible to put such burdens on to your survivors.

P.S. When my bro and I probated our mother's will in AB in 2015, a critical part of that process was to also provide Affadavits from the Witnesses to the Will signature that 'asserts the person was of sound mind when signing the Will'. That is a surprise to many people. Most old wills done in AB don't have such affadavits and then the court can literally engage in a 'trial' to ascertain that the testator was of sound mind when the Will was signed and witnessed. Fortunately, the witnesses to our mother's will done in the 1970s were still alive and of sufficient sound mind themselves, that we were able to get them to sign Affadavits. 

As Carverman said, the world of Estate law has accelerated orders of magnitude from the old days and Will updates are almost mandatory. FWIW, I have revised my Will approximately 10 times in about 35 years (since the birth of my children) due to changs in jurisdiction, changes in Estate law, changes in status (e.g. children becoming adults, divorce, and yet again, due to a common law relationship). I have no doubt there will be future changes as well.


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## Retired Peasant

AltaRed said:


> ...We took the original to the bank that *knew* my mother and our family and they stamped a number of 'true' copies for us. Some places may insist on notarized copies but we did not run into that dilemma. And a few other businesses just accepted a photocopy (never unstaple the original when making copies).


I have learned that this makes things much easier when dealing with an estate. The online, no-bricks-n-mortar banks, can be much more difficult to deal with than your standard bank. Trying to settle things 'online' is difficult.


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## humble_pie

AltaRed said:


> P.S. When my bro and I probated our mother's will in AB in 2015, a critical part of that process was to also provide Affadavits from the Witnesses to the Will signature that 'asserts the person was of sound mind when signing the Will'. That is a surprise to many people. Most old wills done in AB don't have such affadavits and then the court can literally engage in a 'trial' to ascertain that the testator was of sound mind when the Will was signed and witnessed. Fortunately, the witnesses to our mother's will done in the 1970s were still alive and of sufficient sound mind themselves, that we were able to get them to sign Affadavits.




i'm surprised by this because here in quebec, the two witnesses to the signing of a will in english form will also immediately sign & execute their own affidavits, which are then bound into the will itself. I believe those for my mother's will were stapled into the front matter, so that the world could see right off the bat that properly signed affis were present & counted for.

there seem to be enough references in the forum to missing witness affidavits that i'm wondering if this quebec procedure is perhaps not legal in the ROC though.

.


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## AltaRed

Remember I said my mother's will was from the 1970s. A lot has changed since then and I suspect every province has had Affadavits in place for some time. But there are a lot of old Wills still out there. After my father passed away in the early 1990s, we had our mother re-do her POAs and health directives but the lawyer at the time said the Will as written was still functional and there was no need to change it. Now whether the lawyer then 'forgot' about the need for Witness affadavits, or they were not yet part of AB Estate Law, I have no idea. Suffice to say Estate Law changes regularly...and often because society changes (e.g. more complexity in family units such as gay marriage) and because of court precedent in will contestations. The lawyers here at CMF who have experience in Family/Estate Law could probably comment better.


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## humble_pie

stapling affis is OK in the rest of canada then?

hint: if there are any old souls with old wills in your family & you're the executor, try to find out if the witness affis are bound into the will or what. This might be easier said than done.

a problem is that - at least in quebec - the witnesses are usually 2 employees of the law firm. Will signers don't bring their own witnesses & family members are not accepted as witnesses. 

years later no one is likely to even remember the names of the witnesses, who as law firm staff were strangers to the family. Presumably a solicitor who doesn't staple in the affidavits does at least record the names of the witnesses.

still, for me it's staples, staples, staples.

.


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## AltaRed

I really have no idea about witness Affadavits across Canada. Need to ask a lawyer.

I do agree it is usually law firm employees who witness signatures....and they move on, die, or whatever. Sometimes it can even be difficult to find the originating lawyer...decades hence, especially single lawyer firms.


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## carverman

AltaRed said:


> I really have no idea about witness Affadavits across Canada. Need to ask a lawyer.
> 
> I do agree it is usually law firm employees who witness signatures....and they move on, die, or whatever. Sometimes it can even be difficult to find the originating lawyer...decades hence, especially single lawyer firms.


For my recent new will, it was my lawyer and legal secretary that witnessed my signature, initialled each page alongside my initials and signed their names in full on the last page. as per instructions below.

There are no witness affidavits required in Ontario *provided the signing and witnessing is done as defined below in the presence of a lawyer.* 

However, if one is using a will kit to save money, then there is a requirement. The testator of the will would have to follow the instructions of the will kit. More complexity it seems due to changes in probate laws. 



> After you die and your Will has been located, your executor will apply for "probate" in Canada. This process confirms that the Will being presented to the court is the most recent, official copy of your Will, and your executor will be appointed by the court to administer your estate.





> When your executor applies for probate,* at least one of the witnesses will be required to confirm that he or she was actually a witness to the signing of your Will and that the correct legal formalities were followed. This evidence is usually in the form of an "affidavit of execution", *where the witness swears under oath that everybody was present at the signing. This affidavit of execution can be signed at the same time the Will is signed, or when the Will is probated. If, at the time of probate, none of the witnesses are living, or none of the witnesses can be located, then the veracity of the signing procedures can be confirmed by authentication of the signatures.





> *Signing The Will*
> In order to make the Will a legal document, you should first print it and read it thoroughly. Make sure that it accurately reflects your wishes and that you understand everything that is contained in the document. Once you are happy that it reflects your wishes, y*ou must sign your Will in the presence of at least two witnesses, and the two witnesses must also sign the Will, in the presence of the "testator" (yourself) and in the presence of each other. *
> 
> 
> *You and the witnesses should also initial each page, so that it is not possible to alter any pages after the Will has been signed.* A witness cannot be a beneficiary of the Will, they cannot be the spouse of a beneficiary (at the time of signing), they cannot be a minor, and, like the "testator" (you), they must be of sound mind.
> 
> For the signing procedure, gather the witnesses together in a room. You should make a formal statement that you have gathered them to witness the signing of your Will. They do not have to read the Will or know its contents. They are only required to witness your signature.
> 
> *You should initial each page in turn, in the designated bottom corner of each page, and then sign your name in full on the last page, in full view of the witnesses.*
> 
> *Each witness then in turn initials each page, in the designated bottom corner of each page, and signs the last page. Everybody must stay present until all of the signing is complete.*
> 
> *There should only be one original of the Will for everyone to sign*. Copies can be created by photocopy. It is therefore a good idea to sign the original in blue ink, so that it is easily distinguishable from the photocopies. Do not sign the photocopies, as this will create duplicate originals which can be difficult to administer.


https://www.legalwills.ca/signingawill


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## humble_pie

^^


my goodness. Here in quebec things are not the same, how can details in ontario be so different? after all, the traditional "will in english form" has been executed in the exact same manner across canada for hundreds of years. The will of James McGill bequeathing his country estate to a royal institution of higher learning - later mcGill university - is worded quite similarly to my own will.

here in quebec, the lawyer who drafts the will is never a witness to said will. 

moreover, the witnesses are not required to sign in the presence of a lawyer. No party to the will - not the testator, not either of the two witnesses - is required to sign in the presence of a lawyer.

all that is required is that all three - testator plus 2 witnesses - be present together at the same time, that they witness each other signing & thus sign their respective documents.

.


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## carverman

humble_pie said:


> ^^
> 
> here in quebec, the lawyer who drafts the will is never a witness to said will.


Usually the requirement is that two independent witnesses (not family members) are to be present during the signing of the will. This was the case, even in Ontario up until a few years ago, (1990s when the probate court fees became Estate administration taxes. 



> Amount, certificate sought after June 7, 1992
> (6) The amount of tax payable upon the issuance of an estate certificate for which application is made after June 7, 1992 is,
> 
> (a) five dollars for each $1,000 or part thereof of the first $50,000 of the value of the estate; and
> 
> (b) fifteen dollars for each $1,000 or part thereof by which the value of the estate exceeds $50,000. 1998, c. 34, Sched., s. 2 (6).


https://www.ontario.ca/laws/statute/98e34

I'm not sure if it was during the changeover of the rules and new "nasty estate taxes" in Ontario that came to be around in the early 90s, that the requirements became more stringent though. The Ontario gov't greed has taken over obviously and they milk the estates of the deceased for as much as they can get these days..and then there is the HST on funeral costs on top of that, not to mention more legal fees. BC is also the greediest province next to Ontario,



> *Ontario’s charges are the highest in Canada.* In other provinces and territories, the charge is a flat set amount or does not exceed $7 per $1,000, *compared to Ontario’s $15.*
> 
> Suppose you die with an estate worth $500,000. Ontario’s estate administration tax is $7,250.
> 
> This compares to $65 in Quebec, $140 in Yukon, $400 in Alberta, $400 in the Northwest Territories and Nunavut, $820 in Nova Scotia, $2,000 in Prince Edward Island, $2,500 in New Brunswick, $2,630 in Newfoundland, $2,750 in Manitoba, $3,500 in Saskatchewan and $6,658 in British Columbia.
> 
> There is no cap on Ontario’s estate tax. A $10 million estate would be taxed at $149,500.


https://www.thestar.com/business/2015/10/06/ontarios-estate-tax-highest-in-canada-roseman.html



> quote = Humble_Pie:
> moreover, the witnesses are not required to sign in the presence of a lawyer. No party to the will - not the testator, not either of the two witnesses - is required to sign in the presence of a lawyer.
> 
> all that is required is that all three - testator plus 2 witnesses - be present together at the same time, that they witness each other signing & thus sign their respective documents.


It appears that most provinces seem to have to their own set of rules when it comes to official wills that would have to go through probate courts.


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## AltaRed

I think the key to this discussion is that one NEEDS to look up the specifics for the province in which the testator resides. For example, in BC, a handwritten (holographic) will is not valid. http://chahalpriddle.ca/validity-of-wills-in-british-columbia/ 

Also from gleaning the major updates to the Wills and Estates Act in 2014, the Act still does not require Affadavits from Witnesses that they believe the Testator was of sound mind when the Will was signed and witnessed. I suspect Estates Law evolves differently in each province depending on court cases and thus precedents that thus then results in updates.

The short answer is everyone should have a properly done Will designed specifically for the province of residence.


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## humble_pie

AltaRed said:


> The short answer is everyone should have a properly done Will designed specifically for the province of residence.



thankx for bringing this to the attention, that the province of jurisdiction really does matter.

although i have to say - since we're having a kind of nutty monday anyhow - that i really like altaRed's manner of dispensation. Can you find the post, alta? it was lovely

something about altaRed wlll give it away or spend it before he departs this earth because the heirs never remain grateful to the auld phartz anyhow ... each:


.


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## humble_pie

AltaRed said:


> The short answer is everyone should have a properly done Will designed specifically for the province of residence.



thankx for bringing this to the attention, that the province of jurisdiction really does matter.

although i have to say - since we're having a kind of nutty monday anyhow - that i really like altaRed's manner of dispensation. Can you find the post, alta? it was lovely

something about altaRed plans to give it away or spend it before he departs this earth because the heirs never remain grateful to the auld phartz anyhow ... each:


.


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## ctc323

You should! Makes things less complicated if anything were to happen


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## Eclectic12

humble_pie said:


> ... Here in quebec things are not the same, how can details in ontario be so different?
> after all, the traditional "will in english form" has been executed in the exact same manner across canada for hundreds of years ...


Isn't the possibility of difference driven by this being a provincial area of responsibility and Quebec being allowed to have a French style legal system?

Quebec is usually front and centre as the example of being different for how the TFSA is treated when the TFSA holder dies.


Cheers


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## Eclectic12

humble_pie said:


> AltaRed said:
> 
> 
> 
> I think the key to this discussion is that one NEEDS to look up the specifics for the province in which the testator resides ...
> 
> 
> 
> thankx for bringing this to the attention, that the province of jurisdiction really does matter ...
Click to expand...

It can matter multiple times.

I'm not sure if this is still the case but when my parents owned a mobile in Florida, unless there was a will drawn up in Florida - the Florida property passed to the state gov't. 


Cheers


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## ian

You don't need a will if you do not care about, or do not love, those you leave behind. Simply drop dead leave others to make the best of the mess you may leave behind.

If you do care, then do it properly and don't cheap out. Arrange your affairs properly so that your estate is passed on to those you want in a timely manner and subject to as little tax, inconvenience, and legal fees/issues as possible. 

Each province has different legislation and probate tax. Don't depend on armchair experts....get some professional advice and direction if possible. It is money well spent.


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