Dying without a will (i.e. intestate) can create problems for those you leave behind. First, your property will be divided according to the law, which may not be the same as how you would have divided it. Second, there will be extra time delays and expenses involved in wrapping up your affairs, and the court will have to appoint someone to act as your personal representative. The general rule is that your closest relative has the right to be appointed as your personal representative. They are appointed by applying to the court for a Certificate of Appointment of Estate Trustee Without a Will. This gives authority to the personal representative to manage and distribute the estate of the deceased.
You are allowed to make a legally binding will at any time after you turn 18. Beyond that, there is no set time or age when a will needs to be updated, as it is entirely dependent on your individual circumstances. However, there are several key stages throughout a person’s life that might cause them to consider rewriting their will.
Here are some common triggers:
- new baby;
- named heirs pass away;
- move property state from common-law to community-law or vice versa;
- disposal or purchase of significant assets;
- guardianship no longer needed for adult children;
- change mind about bequests to heirs;
- wish to add or change a charitable beneficiary.
A will is a very important legal document, and it is wise to employ the expertise of a qualified attorney to draft one. Even though some provinces and states allow an individual to compose a will without one, a will is a relatively inexpensive legal document and could save your heirs much more in both dollars and hassle.
Your executor is responsible for protecting and administering your estate and distributing assigned assets to your beneficiaries. These are key duties that require a substantial amount of time and effort – on top of the capability to make financially-responsible decisions.
The executor must exercise the care, diligence and skill that a reasonable person would exercise in dealing with the property of the deceased. They owe a ‘duty of loyalty’ which means that the executor’s decisions and actions must be made solely be in the interest of the estate. The executor must act with ‘an even-hand’ (acting impartially among all the beneficiaries), and he or she must be transparent in providing information to the beneficiaries. Finally, the executor is responsible for handling the assets of the estate and must be able to show how each asset was dealt with.
Your executor should be someone who:
- You trust to manage your affairs the way you want;
- Lives reasonably close, so it is easy to deal with your family and your assets;
- Has some knowledge of tax, investments and financial decision-making and knows when to seek guidance from others such as tax professionals and lawyers;
- Is sympathetic and good at getting things done,
- Communicates well;
- Is likely to survive you.
Probate is the court procedure for:
- Formal approval of the will as the valid last will of the deceased; and
- Appointment of the person who will act as the executor of the estate.
Probate is the process that gives the executor the authority to act on behalf of the deceased.
Non-probate assets are any assets in your estate that will pass to heirs outside of the probate court. Examples include jointly held property such as real estate or jointly held bank accounts; and assets that will pass to heirs based on a death-benefit beneficiary designation that are pre-stated in a life insurance policy or qualified retirement plan (such as an, IRA, RRSP or RRIF).
Additionally, some people title all their property to a living trust, and at their death, the named trustee will distribute or manage assets in accordance with the trust document. The trust and assets possessed by the trust are not reviewed by the probate court. In provinces or states where probate fees are expensive, a living trust can save on those costs. Also, those who own property in another province or state may want to consider a living trust so that they do not have to deal with two probate courts.