C'est la Vie Estate Law Blog

As of January 1, 2022, amendments to Ontario's Succession Law Reform Act (SLRA) can disqualify separated spouses from inheriting from one another. These changes apply whether a person has a Will (testate) or dies without one (intestate). To inherit despite separation, a Will must explicitly state such an intention. These amendments ensure that separated spouses are treated similarly to divorced individuals regarding inheritance rights. Previously, only divorced spouses were barred from inheriting under an ex-spouse's Will or intestate estate. However, it’s crucial to note that there are specific timing criteria, and the new regulations do not apply to all separated spouses. The changes stem from Bill 245 – the Accelerating Access to Justice Act, 2021. Section 17 of the Succession Law Reform Act was revised to revoke gifts to a "separated spouse" in a Will, mirroring the rules for divorced individuals. Additionally, Section 43.1 was introduced, stipulating that intesta...

Understanding Capacity in Will-Making in Ontario In Ontario, the concept of capacity is crucial when it comes to creating a valid Will. Capacity refers to an individual’s mental ability to understand the nature and consequences of making a Will, as well as the implications of their decisions regarding the distribution of their estate. To have the legal capacity to make a Will, a testator (the person making the Will) must generally meet three criteria: they must understand the nature of the act of making a Will, recognize the extent of their assets, and comprehend who their beneficiaries are and the effects of their choices. This means that even if someone has a medical condition or is receiving treatment, they may still possess the capacity to make a Will, provided they can satisfy these requirements. In Ontario, there is no strict age for capacity, but individuals must be at least 18 years old. Importantly, the law recognizes that capacity can fluctuate; thus, it’s advisable for those...

 What Happens if Someone Dies Without a Will in Ontario? In Ontario, when a person dies without a Will, they are said to have died "intestate." This situation can create challenges for the deceased’s loved ones, as the distribution of their assets and the management of their estate are dictated by provincial laws rather than personal wishes. Here’s a breakdown of what happens in such cases. 1. Intestate Succession Law Ontario's intestacy laws govern how the deceased’s assets will be distributed. The distribution follows a hierarchy established by the Succession Law Reform Act . The first in line are typically spouses and children. If there are no surviving children, the estate may go to parents, siblings, or further relatives in a specific order. If no relatives can be found, the estate may ultimately be transferred to the government. 2. Estate Administration Without a Will, no one is automatically appointed to administer the estate. However, an interested party, often a...

What to do if an estate has more debts than assets?  Here’s an overview of executor responsibilities and liabilities concerning insolvent estates in Ontario: Fiduciary Duty: Executors, or estate trustees as they are known in Ontario, have a fiduciary duty to manage the estate’s affairs responsibly. This includes ensuring that all debts and taxes are paid in accordance with the law.  Notice to Creditors and Handling Claims:  Executors are required to notify creditors of the estate, typically through a published notice and/or written notifications. This step is crucial for ensuring that all creditors have the opportunity to make claims against the estate. Executors need to carefully review and address creditor claims and settle valid claims according to their priority. If there are insufficient funds, some creditors may not be paid in full, and the estate may be required to write off certain debts. Executor Liability:  An executor is not automatically liable for t...

Understanding Estate Administration Tax in Ontario When administering the estate of a deceased person in Ontario, one important aspect to be aware of is the Estate Administration Tax (EAT). This tax, sometimes known as probate tax, is a fee levied by the provincial government to process the probate application and grant legal authority to execute the estate. Here’s a straightforward guide to understanding this tax. What is Estate Administration Tax? Estate Administration Tax is a fee charged by the Ontario government on the value of an estate that goes through the probate process. This tax is required to obtain a Certificate of Appointment of Estate Trustee (often referred to as a “grant of probate”), which legally authorizes the executor or administrator to manage and distribute the deceased’s assets. When estate planners peak about probate tax planning, we mean arranging your affairs to reduce the amount of this tax that will be payable.  How is the Tax Calculated? The amount o...