Some common terms in drafting a will

If you are having your will done by Haber & Associates it's a good idea to know and understand a few key basic terms that you will probably hear us mention during our meeting.  Firstly, the law of wills is concerned with the validity of dispositions that will take effect upon your death and are contained in your will.  Succession is what happens to one’s estate or wealth upon his or her death.  The right to dispose of one’s assets is a qualified right meaning one cannot leave out his or her spouse or dependant children.  The law of succession concerns itself generally with all transfers of property from one generation to another.  

Probate serves as the proof to financial institutions, financials advisors, the Land Registry Office, insurance companies and other involved processes from a will that has been certified by the Superior Court of Justice and that your executor is authorized to represent your estate.  When you pass away your will gives legal authority to deal with your estate to your executor and although he/she is legally entitled to do so, when it comes time to redeem or transfer certain assets registered in your name probate is sometimes required.  This serves as proof to the examples above that your executor is authorized to represent your estate.  Sometimes you will hear the term estate administration tax.  This is the same as probate.  The actual grant of probate in Ontario is known as Certificate of Appointment of Estate Trustee with a Will.  Probate tax planning is very important especially with larger assets because probate taxes are usually calculated on the value of the gross estate.

A will is a written, typed or printed document made by the person who wishes to dispose of his/her property on his/her death and executed in the manner prescribed by the Succession Law Reform Act.  It only has effect upon one’s death.  During one’s lifetime the will is ambulatory and revocable.  It is inoperative until one dies.  

A codicil is a very common testamentary document which supplements, explains or modifies a will bearing an earlier date.  Codicils are normally only used for minor adjustments to your will.  If major changes are required, then it is customary for Haber & Associates to make a new will for you.

A testator is you.  It is a person who makes the will.  If one dies testate, it means that you have a will that will be valid and upheld after your death.  If you die intestate it means that you do not have a will or it is invalid.  Intestacy is much more expensive and complicated.  The Succession Law Reform Act applies a “statutory will” directing who is entitled to the estate.  A personal representative of the deceased is either an executor (estate trustee with a will) or an administrator (estate trustee without a will).  An executor is a named person in the will or codicil to administer the estate, while an administrator is a person appointed by the Court to administer the estate of a person who died intestate or without a will.  

A Certificate of Estate Trustee is a document issued by the Court after death which authenticates the Office of the Estate Trustee.  If an executor proves the will he/she receives letters probate (Certificate of Appointment of Estate Trustee with a Will), which will serve as evidence to the world the executor’s title.  If an administrator proves the will, he/she will receive letters of administration (Certificate of Appointment of Estate Trustee without a Will).  On intestacy persons who are entitled to share in the Estate are determined by statute.

The above are some key terms that are good to know when you make a will.  If you have any questions, please do not hesitate to contact Matt Lalande by phone or email to discuss the drafting of your will.