My loved one has passed away: how do I find out if they had a Will?

If your loved one has passed away and it is not clear to you whether or not they had a Will, the process of trying to locate the Will can be daunting but there are various places that you can search.

This includes the deceased’s home or office. You can also inquire with their financial institutions as well as the deceased’s advisors, including financial advisors, accountants and lawyers for example.

If you suspect that a particular lawyer may have prepared a Will but the lawyer is no longer practicing, you can reach out to the Law Society of Ontario to find out if they have the Will or have a record of where the lawyer’s files may be stored. If the deceased did not have a relationship with a particular lawyer, you can try calling law offices in the area where the deceased resided to find out if they may have acted on the preparation of a Will for the deceased.

You can also try contacting your local courthouse to find out if the deceased may have deposited the original Will with the Court. Another option is to search the Canada Will Registry in the event that the deceased created a record in the Registry to document where their original Will is stored. There is a fee for the search and is can be done at https://canadawillregistry.org/consumer-will-search or noticeconnect.com. You can also have a lawyer conduct a search using Will Check at willcheck.ca.

Another option is to place an ad in the Ontario Reports, which is typically sent out by email to all lawyers in the Province of Ontario on a weekly basis.

If the estate of the deceased must be probated and you plan to apply to the court for a Certificate of Appointment of Estate Trustee Without a Will (also referred to as an “estate executor” or “estate administrator”), you will be required to declare in the Application for a Certificate of Appointment of Estate Trustee that you have “carefully” searched for a Will and were not able to locate it, so you have a legal obligation to try to locate a Will if one does indeed exist.

To inquire about our Will & POA packages, contact us at info@werhunlaw.com.

Werhun Law is a law firm located in Etobicoke serving the Greater Toronto Area. Werhun Law provides services primarily in residential and commercial real estate, mortgages, commercial leasing, and wills and estates. If you have any questions or are in need of legal services you can contact us at info@werhunlaw.com.

The information in this post is for general informational purposes only. It does not constitute legal advice and does not create a solicitor-client relationship.

Do you need to apply for probate but can only locate a “copy” of the Will?

Do you need to apply for a Certificate of Appointment of Estate Trustee (probate) but can only locate a “copy” of the deceased’s Will?

Under Rule 74.04(1) under the Ontario Rules of Civil Procedure, the “original” Will must be submitted with the application for the Certificate of Appointment of Estate Trustee with a Will. If the person(s) applying to be appointed the estate trustee cannot locate the original of the Will and only has a copy of the Will, a Form 14E Notice of Application will need to be filed with the court (subject to a few exceptions).

The person applying to be the estate trustee or anyone with a financial interest in the estate would have to make an Application for directions under Rule 75.06 to have the copy of the Will proved as a valid testamentary document and the last Will of the deceased. The Will can be proved in “common” or “solemn” form. To prove the Will in solemn form, an application must be directed to a judge for a court order. Some examples of situations where an Application to Prove a Will in Solemn Form are required are: (1) only a copy of the Will can be located (the original has been lost or has been destroyed) or (2) both of the witnesses cannot be located and evidence as to the proper execution of the Will cannot be obtained. An Application to Prove the Will in Solemn Form can be cumbersome and requires evidence to rebut the presumption that the original Will cannot be located because it has actually been revoked by the deceased (and is therefore, no longer valid). If the original Will has been lost or destroyed, the consent of every person who has a financial interest in the estate is also required. If the consents cannot be obtained or the judge is not satisfied with the evidence submitted to the court, an Application or motion for directions would have to be brought to determine how the the lost or destroyed Will is to be proved, and a judge may make directions as to what evidence will be required.

It is important to ensure that your original Will is stored in a safe location and that the individuals who you have appointed as the estate trustees in your Will know not only where your original Will is located - but that they will be able to access the original Will following your death as well (ie. if the Will is stored in a safe).

To inquire about our Will & POA packages, contact us at info@werhunlaw.com.

Werhun Law is a law firm located in Etobicoke serving the Greater Toronto Area. Werhun Law provides services primarily in residential and commercial real estate, mortgages, commercial leasing, and wills and estates. If you have any questions or are in need of legal services you can contact us at info@werhunlaw.com.

The information in this post is for general informational purposes only. It does not constitute legal advice and does not create a solicitor-client relationship.

Real Estate and Estate Planning Intertwined: adding children on title to ‘avoid probate tax'

We get contacted on a regular basis by either the parent or adult child advising us that they heard from someone somewhere that the child needs to be added on title to the parent’s property as a joint owner to avoid probate fees (estate administration taxes) when the parent passes away. They have been told that this is a simple process and would like to schedule a meeting with the lawyer tomorrow to sign the documents and have the child added on title asap.

But, this isn’t as straightforward as it seems. Adding a child on title to a parent’s property as a joint owner can be risky, and has a number of draw backs for both the parent and child that must be considered.

Under the law, when an adult child is added as a joint owner on a parent’s property, there is a presumption of a resulting trust. This means that it is presumed that the child is holding their interest in trust for the parent. In order to rebut this presumption, the child would have to establish that they had a real beneficial interest in the property, which may include showing that the child actually lived at the property along with the parent, and/or contributed to the household expenses and mortgage payments (which we find is usually not the case), or that the parent truly did intend for the transfer to be a gift at the time that title was transferred.

Additionally, other siblings who were not added on title could potentially be left out of the inheritance even though the parent had anticipated that the child on title would split the proceeds of the sale of the property amongst all of their children equally following death. Further, if the property is not the child’s principal place of residence, there could be capital gains tax implications for the child. Adding a child on title as a co-owner also exposes the property to potential creditors of the child and spousal claims if the child is married and subsequently divorces. Lastly, as the parent, you would lose full control over your home and would need obtain your child’s consent if you wanted to mortgage or sell your property in the future.

When you take all of these factors into consideration and when you consider that the amount of probate tax currently payable in Ontario on $1,000,000 is $14,250, depending on the circumstances, the parent may ultimately decide to simply deal with the property in their Will and let it fall into their estate.

To inquire about our Will & POA packages, contact us at info@werhunlaw.com.

Werhun Law is a law firm located in Etobicoke serving the Greater Toronto Area. Werhun Law provides services primarily in residential and commercial real estate, mortgages, commercial leasing, and wills and estates. If you have any questions or are in need of legal services you can contact us at info@werhunlaw.com.

The information in this post is for general informational purposes only. It does not constitute legal advice and does not create a solicitor-client relationship.