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The assets you own and the debts and liabilities that are in your name when you pass away make up what is known as your estate. The assets in your estate are distributed depending on how they are owned and whether you did or did not have a will in place. For example, you may have money in a bank account or you may own real property. You may even have designated a beneficiary of one or more of your assets (for example, a pension or an insurance policy or a registered retirement account). While you are not legally required to have a will, there are advantages to having one. If you pass away without a will, your estate will be distributed in accordance with Ontario's Succession Law Reform Act and an executor would need to be approved by the court to help administer your estate. If you want to ensure that your assets are distributed according to your personal wishes, then you must take steps to have a legal will in place. In this case, we recommend that you schedule a consultation with one of our lawyers to help guide you in the right direction.
An estate requires an estate trustee to help manage and distrbute the estate. The estate trustee is responsible for this obligation. There may be one or more estate trustees named in a will. The estate trustee is named in a person's will prior to his or her passing, or if there is no will, the estate trustee will need to be appointed by the court. The estate trustee is responsible for carrying out the wishes of the deceased which are set out in the terms of the will, and also for administering an estate in accordance with the will and/or law. A person named as an estate trustee in a will is not required to act as the estate trustee. If the designated person decides to act, he or she is responsible for (a) winding up the affairs of the deceased; (b) paying taxes, bills and any other debts; and (c) collecting the estate assets and distributing the residue of the estate to those who are entitled. If the person named as the estate trustee in a will declines to act or cannot act for any reason, then the beneficiaries of the estate may nominate another person to act as estate trustee. An estate trustee can be appointed by the court if (a) there is no willl; (b) there is no estate trustee named in a will; or (c) the estate trustee named in a will asks the court to confirm the validity of the will and their appointment
It may also be necessary to consider whether you need a Power of Attorney. A Power of Attorney is a legal document in which you appoint a person to make decisions for you while you are alive, including with respect to your health and/or property, in case you are unable make decisions for yourself because you are not capable. A Power of Attorney terminates upon death.