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FAQs – Wills & Estates

Planning your estate can be a daunting and confusing process. Below are a few commonly asked questions about estates law in Mississauga, and answers that may help provide some foundational information to help you better understand the implications of your Will.

Frequently
Asked Questions

In general, the purpose of writing a Will is to ensure that your assets are distributed in accordance with your wishes after you pass on and to ensure that your most loved ones are adequately taken care of financially. If you die without a valid Will, the laws of intestacy will apply.

 

In Ontario, dying intestate means that rules set out under the Succession Law Reform Act will apply to determine how your estate will be distributed. Essentially, if you are married, your spouse will be entitled to the first $200,000 worth of the estate. Following that, specific rules apply to distribute the remainder of the estate among your spouse and children (whereby amounts for any deceased child may go to their children ). If you have no spouse or children, then your parents take next priority, followed by any siblings (if your parents are no longer alive). These rules can be complicated, and will often result in significant estate administration fees, including legal fees to determine who is entitled to benefit from the estate.

Every Will needs an estate trustee – the individual responsible for administering the estate and ensuring that assets are distributed in accordance with the Will’s terms. This should be someone you trust, who will act with integrity and honesty, and follow the wishes you expressed in your Will. It can be helpful if this person has knowledge of law or general accounting principles. It is also wise to choose someone who is diligent and comfortable with finances and administrative work generally.

 

The estate trustee may also be a beneficiary of the Will. However, you will want to make sure you are convinced that this person’s interest in the Will not affect his or her capacity to act fairly and impartially with all the beneficiaries. If you have any reason to believe that there will be disagreement among beneficiaries of the Will, it may be wise to pick someone else. It is also possible to name a professional trustee who will be completely impartial, though this can result in increased costs. However, it may be worth the cost to name a professional trustee if it avoids litigation or discord among beneficiaries.

Although the law generally allows you to draft your will as you see fit, there will be circumstances where courts will find a reason to order that the terms of a Will be varied. Although the law does not dictate any particular amount or percentage of your estate that must be allotted to your spouse or children, section 58 of the Succession Law Reform Act allows for dependants (i.e., spouse and minor children) to apply to the court to ask for adequate provisions. The amounts that will be awarded in any case will depend on the specific circumstances involved.

Marketing, branding, and developing goodwill for your business name are integral to building a successful business. Of course, care must be taken when choosing a business name, logo, slogan, or trademark, to ensure that they do not infringe on the existing rights of other businesses. To do so can result in litigation, legal costs, and business implications. Similarly, to protect your own company from the unfair competition, it is often wise to protect your trademarks.

 

Similarly, if your company has developed a unique product, your lawyer can discuss with you the viability of patenting your product or invention. Patent law operates on a “first to file” basis, so if a competitor has created a very similar idea, process or product, you may be unable to file the patent if they do before you. A commercial lawyer can help you ensure that you are able to capitalize on and protect, your business’s name, trademarks, and product.

There are various reasons why litigation may ensue after a person passes on. As above, a family member, spouse or child who sees the terms of the Will as being unfair or providing inadequately for them, may commence a legal action against the estate.

 

Other common reasons for estate litigation is that the deceased lacked the capacity to execute a Will, was unduly influenced with respect to the terms of the Will (e.g., by a family member or friend with a beneficial interest in the Will) or executed the Will under duress.

 

Litigation is also very common where a person dies intestate. Although the legislation sets out rules for intestacy, it is difficult to completely avoid ambiguity, and various interested parties may make competing arguments with respect to how the rules ought to be applied.

A testamentary trust is an alternative to the direct and immediate distribution of estate assets upon your passing. It allows you to control the timing and manner of the distribution of your assets to your beneficiaries. In essence, a testamentary trust is a trust created by your Will, at the time of your passing, to hold assets in trust for various beneficiaries until certain points in time, or upon the occurrence of a particular event.

 

One reason to employ the use of a testamentary trust is to help ensure that beneficiaries who lack the capacity or discipline to manage their own financial affairs are paid out incrementally. Another reason to employ a testamentary trust is to reap the tax benefits of doing so (e.g., in a spousal trust). An experienced estates lawyer will be able to help you devise a strategy that is most advantageous in your circumstances.

While there is no set “interval” that dictates how often you should review or revise your Will, it is wise to do so following any critical life event, such as after marriage, when you have children, after you separate, divorce, remarry, or after the death of a loved one who may be a beneficiary to your estate. Another reason to review your Will and seek further advice from a lawyer is if your financial situation has changed substantially, whether because you have acquired substantial new assets, sold certain assets, or taken on new debts. Regardless of any major changes to your finances or life situation, it is wise to review your will every few years and check in with your lawyer. Sometimes, changes to the law may make it advantageous to adjust the terms of your Will.

 

Plan Your Estate With Murad Ali Khan, Mississauga Wills Lawyer, at MAKs Law Firm

 

If you have not yet drafted a Will, it is not too early to ensure that you have your affairs in order. The Mississauga Wills lawyers at MAKs Law Firm have experience with Wills and estate planning. We can help you take your first steps. Contact us for an initial consultation at 647-955-1681.

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