Frequently Asked Questions

Why do I need a Will?

A properly drafted Will is a necessity for every adult.  Making your Will is an important step to ensuring your family will be properly looked after if anything should happen to you.  Without a Will, you have no control over who will look after your property and your children if you pass away.  A court will appoint someone to look after your estate, and, if required, to be the guardian of your minor children.  The people the court chooses to appoint to these roles may not be the people you would have chosen.

Without a Will, all of your property will be divided according to Ontario law. Sometimes this can lead to an unexpected and unfair division of estate assets.  In addition, there will most certainly be unnecessary delays and costs in administering your estate.  The distribution of the estate may be severely delayed with higher administration costs.  Opportunities to save your estate from paying more tax than necessary will be lost.

Any share of your estate allocated to any minor children will be held until they turn 18 (unless a costly court application is brought to release some of these funds).  When the minor child turns 18 they are entitled to receive their entire inheritance.  There are no second chances if the child does not handle their inheritance wisely.

I am separated from my spouse.  When should I change my Will?

If you are separated from your spouse, it is vital that you make a new Will as soon as possible. If you do not have a Will, the law in Ontario provides that your spouse will be entitled to inherit either all or a large share of your estate (depending on whether you have children and how many).  If you have a valid Will, your existing Will remains in effect while you are separated unless you revoke it.  Married couples normally leave everything to each other in their Wills.  If you die before your divorce is finalized, and you have not made a new Will since separating, your former spouse will likely get everything.

The law in Ontario, and any private contract or agreement you may have entered into, may provide certain rights or entitlements to a former spouse to your estate.  However, a professionally drafted Will will help you to limit those rights and entitlements, ensuring that your former spouse will receive only what he or she may be entitled to by law.

Making an estate plan which includes a thoughtfully and professionally drafted Will is an important step in making sure your family and other loved ones are well taken care of.

Why do I need a lawyer to prepare my Will?

A well drafted Will can save your estate a lot of money.  Expensive legal  fees, court costs and delays are often the result of attempting to obtain probate of a Will which has not been prepared by a lawyer.  If a Will is vague or confusing, it may even be necessary to bring the Will before the court to have a judge interpret the terms of the Will.  At Morgan and Phillips LLP you will receive advice on how to reduce or eliminate probate fees and taxes, which will often result in savings of thousands of dollars. Without specialized legal advice, uncertainty and confusion may arise which could result in entirely avoidable and very costly estate litigation and family conflict.

What is involved in Estate Planning?

At Morgan and Phillips LLP we can help you to develop an Estate Plan specifically tailored to your own unique circumstances.  We will consider whether any of the following would be of benefit to you and your Estate Plan:

  • Income-splitting opportunities in Wills and Trusts;
  • Multiple Wills to protect business assets; to reduce probate fees; and to administer property in other jurisdictions;
  • Trusts to protect assets and income from creditors and family law claims;
  • Henson Trusts or other Discretionary trusts to ensure disabled loved ones will continue to receive the care and government benefits they need for their lifetimes.
  • Domestic Contracts to safeguard inherited or Trust assets from family law claims and to protect assets in the event of separation or death and to ensure assets and income are preserved for children and grandchildren.
  • Powers of Attorney, and Trusts to help with planning for possible future incapacity.

What are Multiple Wills?

For some people it is appropriate to have more than one Will.  Multiple Wills are recommended where the estate will include business assets or property located in another country.   It is important to ensure that one Will does not revoke or overide the other Will.

In Ontario it is becoming increasingly common for people to make Multiple Wills in order to have one Will deal with assets that will not require probate and another Will to deal with all other assets.  Multiple Wills are often used for people who own shares in private companies or are partners in a business.   In this situation one Will deals primarily with the business assets, which do not need to be probated in order to be administered, and the other Will deals with almost everything else.  The executor will normally only need to probate the Will which deals with the non-business assets, thus making it is possible to avoid paying probate taxes on the private corporation shares.

How much will this cost?

The legal fees for a Will and a Continuing Power of Attorney for Property and a Power of Attorney for Personal Care vary depending on the complexity and detail involved in your Estate Plan and Will.  We offer a flat rate price for a straightforward or “simple” Will and Power of Attorney package. These approximate fees are an estimate based on the expected amount of time and work involved with the preparation of relatively straightforward Wills and Powers of Attorney.  Where the situation requires additional time to be invested, the rate charged will be adjusted accordingly based on our current hourly rates.