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Rental property income
June 16, 2021
4:32 pm
Loonie
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It may not be relevant to you but it's likely to be a hassle for your wife.

June 16, 2021
4:59 pm
lhsaid
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Loonie said
It may not be relevant to you but it's likely to be a hassle for your wife.  

Loonie, can you elaborate please. I'm missing something. If I have a wife and kids and I die without a will, who do you think may step in and inherit my estate in Ontario ? Gouvernment ? Other relatives ?

June 16, 2021
6:08 pm
Norman1
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The house is not easily subdivided like 5,000 shares of a company are.

If the house were $400,000 and surviving spouse is entitled to only $200,000 of the estate, then the spouse and the children many need to share the remaining $200,000 worth of house. The children will be added to the title of the house.

Everyone will need to sign to apply for a mortgage or sell the house. It will be an interesting situation if some of the children are still minors and cannot sign yet!

June 16, 2021
6:12 pm
Bill
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lhsaid, you wondered, as the house is in your name only, if there might be a problem for your family if you die. And you don't have a Will, it appears, to ensure there will be no problems. Doesn't make sense to me.

No-one else will inherit if you die without a Will, but your family is not a unit, it's a bunch of separate persons. And each person would be entitled to her/his own separate portion of your estate, either in cash or other property.

June 17, 2021
3:50 am
Loonie
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You need to see a lawyer, ask about how to deal with house ownership, and you both need to make wills and complete powers of attorney. Don't cheap out on this.

If you don't have a will, the government does decide who gets what, at least proportionately. Rules vary by province.

But, worse than that in my view is that, if you die intestate, your wife will then have to go to court to get the court to grant her the right to administer your estate according to the provisions of the law. She will probably have difficulty getting your TFSAs and RSPs, if any transferred to her even if you designated her as beneficiary because banks increasingly want to see the will. TFSAs that are stuck in limbo accrual interest are taxed on that income. There may be other issues, and all these things take time too. I am not a lawyer.

You really shouldn't depend on a forum like this for necessary legal advice. It's not in your best interests.

June 17, 2021
4:13 am
lhsaid
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Loonie said
You need to see a lawyer, ask about how to deal with house ownership, and you both need to make wills and complete powers of attorney. Don't cheap out on this.

If you don't have a will, the government does decide who gets what, at least proportionately. Rules vary by province.

But, worse than that in my view is that, if you die intestate, your wife will then have to go to court to get the court to grant her the right to administer your estate according to the provisions of the law. She will probably have difficulty getting your TFSAs and RSPs, if any transferred to her even if you designated her as beneficiary because banks increasingly want to see the will. TFSAs that are stuck in limbo accrual interest are taxed on that income. There may be other issues, and all these things take time too. I am not a lawyer.

You really shouldn't depend on a forum like this for necessary legal advice. It's not in your best interests.  

Thanks Loonie for good advice, it's in the plan.

June 17, 2021
5:49 am
Bill
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Half of Canadians don't even have a Will, doesn't seem to be causing mayhem in the homes and courts of our land. I've never used a lawyer, if you're halfways motivated and competent a few hours research online and you can do up your own simple Will (keep it short, make your intentions very clear), covering everything in your own situation, particularly if you're just passing all on to family. Get a couple of neighbours or acquaintances not named in the Will in any way to drop by to witness it, give it to your executor for safekeeping, keep a copy. Read it every year or so, change it when your desires change, destroy all previous Wills and copies.

Did same for my parents when they asked me to, mine was better than the crappy one some lawyer had whipped off for them, all went well.

Just another option, if you're up for it.

June 17, 2021
6:48 am
lhsaid
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Bill said
Half of Canadians don't even have a Will, doesn't seem to be causing mayhem in the homes and courts of our land. I've never used a lawyer, if you're halfways motivated and competent a few hours research online and you can do up your own simple Will (keep it short, make your intentions very clear), covering everything in your own situation, particularly if you're just passing all on to family. Get a couple of neighbours or acquaintances not named in the Will in any way to drop by to witness it, give it to your executor for safekeeping, keep a copy. Read it every year or so, change it when your desires change, destroy all previous Wills and copies.

Did same for my parents when they asked me to, mine was better than the crappy one some lawyer had whipped off for them, all went well.

Just another option, if you're up for it.  

Thanks Bill, I do have something hand-written awhile ago, but I'm always skeptical about its legality even though (in Ontario at least) people say its legal when all hand-written. But, then, someone has to prove that it was actually hand-written by the right person !. I'm not sure if lawyer actually register the wills somewhere ? or all what they do is just draft it for you and then you'll have to sign it and witness it yourself ? Also, I see a bunch of online sites that offre this service with ongoing updates but I'm not sure about the legal side of it.

June 17, 2021
6:59 am
HermanH
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Loonie said
You need to see a lawyer, ask about how to deal with house ownership, and you both need to make wills and complete powers of attorney. Don't cheap out on this.

If you don't have a will, the government does decide who gets what, at least proportionately. Rules vary by province.

There may be some arcane rules that are not commonly known. For example, I was told by my lawyer that a Will written by hand is acceptable and recognized, but if you type it or use a computer, it is not considered valid without the appropriate witnesses. Also, I do not remember if this is only an American state/federal rule or also Canadian practice, but I have heard say that a minimum assignment of $5,000 will prevent family members from challenging a Will.

As suggested, if your final wishes are important to you, seek professional counsel.

June 17, 2021
11:23 am
Bill
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Here's some (Ontario) info on handwritten Wills, etc:
https://ontario-probate.ca/signing-wills-in-ontario/

Far as I know lawyers are not required to register Wills (least in Ontario), though I believe there are some outfits that offer that service for interested lawyers. Lawyers keep them presumably in locked, fire-proof, etc places. It's important that your executor either has or knows where the Will is, no good if when you're dead only you know.

Online advice from lawyers naturally encourages lawyer involvement, online advice from will kit sellers, etc naturally encourages buying what they offer, so educate yourself thoroughly before you do your own. Also (again my opinion only) depends on complexity of your estate and of your wishes, as well as what kind of family (e.g. harmonious vs questionable) you're in - if any doubts then you might be one of those for whom pro help definitely is a better option.

Come to think of it, if your kids are minors and still at home and everything is going to your spouse/kids (and your kids are all with that spouse) then maybe it's more likely a lawyer is not really needed. My main concern at that age was the custody and welfare of the kids if both parents died suddenly, we put those instructions in our Wills. But as you age your relationships are now with other, independent adults, extended family and their partners, perhaps grandkids, maybe >1 partners of your own over time, etc, plus your assets may be more diverse and substantial, so maybe pro help might be more important as things get more "complicated" as we journey along.

June 17, 2021
11:25 am
Norman1
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Holograph wills are valid in Ontario if they meet certain requirements. Pallett Valo LLP: Holograph Wills in Ontario has some details.

Like a witnessed will, a holograph will can be invalidated if it can be shown that the person did not have mental capacity when he/she signed the will. Lawyers preparing a will know this and will also gather evidence that the client did have mental capacity, in case someone tries to raise the issue later.

Lawyers will also have the signing of the will properly witnessed and do the required affidavits from the witnesses. So, no issue trying to locate the witnesses years later when the will is probated. Also avoid problems with witnesses developing dementia and can no longer attest to witnessing the signing!

June 17, 2021
5:59 pm
Bill
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Agreed, at my age I like to use the younger generations for help where I can because people my age and older are going downhill fast before my very eyes!

June 18, 2021
2:27 pm
Norman1
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Holograph wills are for extraordinary situations, like the famous Saskatchewan tractor fender will of farmer Cecil George Harris: Will written on tractor 65 years ago celebrated….

Howard Hughes' holograph "Mormon Will" was eventually ruled to be forgery. Without a will, it took over 30 years for his estate to be settled after people showed up in court claiming they were one of his kids or partners!

It is better not to rely on a holograph will if one has a choice.

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