Wills and Estates
First question:
DO I NEED A LAWYER?
While
there is no requirement to use a lawyer, probate is a rather formal
procedure. One minor omission, one failure to send Great Aunt Tillie a
copy of the petition, or a missed deadline, can cause everything to
come to a grinding halt or expose everyone to liability.
The
death of a family member or friend sometimes tends to bring out the
very worst in some people. Experience shows that even in close families
there is a tendency to get overly emotional about relatively trivial
matters at the time of a loved one's death, such as who gets the iron
frying pan and who gets the kettle. Such minor matters, or any delays
or inconveniences can be upsetting, pose issues of fairness, and create
unfounded suspicion among family members. Thus it generally is a very
good idea to "let a lawyer do it".
The complexity of the estate and the ability and willingness of the next-of-kin are often the determining factors. You are encouraged to seek legal advice if there are any questions regarding status.
When there is no Will, the death will be referred to as “intestate” and will undoubtedly require expenses for letters of administration. Property passes by law to certain specified survivors such as the spouse or children.
When there is a Will, the document will specify how any property is to be distributed and managed. It will name one or more executors to oversee these instructions. The executor may be entitled to 5% of the estate depending on the work involved in settling the estate.
Probate is a document providing that a Will is legal. The original copy of the Will is required. An Affidavit from one of the witnesses to the will must be obtained. The application is then signed before a lawyer. A judge in Probate Court will then notarize the application.
If someone is dissatisfied with the conditions of the Will, the Succession Law Reform Act provides opportunity to express dispute within a six month time frame. A lawyer will file a dipute with the office of the Surrogate Clerk of Ontario.