Our Service
We provide a comprehensive Estate planning service (Will drafting, etc.) for clients domiciled outside of Canada, but who have movable or immovable property (or both) situate in the province of Ontario, Canada. Movable assets include bank accounts, and stocks and shares in companies incorporated in Ontario. Immovable assets include land or real estate such as houses or condominiums.
Do I need an Ontario Will?
Whether you have movable or immovable assets situate in Ontario, it is highly recommended to have an Ontario will even if you already have one in your country of domicile. It is possible to have a single will in your country of domicile that applies to all global assets, but there are important advantages to having an Ontario will or “contingent” wills; i.e., complementary wills in both countries.
Ontario law makes a distinction between movable and immovable assets. Pursuant to Ontario law, if you have immovable assets situate in Ontario, the laws of Ontario will apply in regards to your will’s validity. However, if you have movable assets, the laws of your country of domicile will apply.
If you have immovable assets situate in Ontario and only one will in your country of domicile, your will may not be valid in regards to your Ontario immovable assets. Because the laws of Ontario are not the same as the laws of your country of domicile, it is essential for you to have an Ontario will prepared by an Ontario lawyer. In regards to movable assets situate in Ontario, you do not need an Ontario lawyer to ensure your will is valid, but there are still important advantages to having an Ontario will.
Having an Ontario will can save your heirs a great deal of time and money. With contingent wills it will be possible to proceed with getting probate and dealing with your Estate in both countries simultaneously; whereas, if you have only one will, probate will have to be obtained first in your country of domicile before it will be possible to apply in Ontario. Having an Ontario will means there will be a local executor and the basic application for Ontario probate will be much quicker, simpler and economical.
An Ontario Will may also be part of the client’s international tax planning. Compared with the United States and many European countries, Canada does not have an Estate tax. As such, having an Ontario will may actually allow the client to reduce their exposure to estate taxes internationally.
Many foreign investors who only have moveable assets in Ontario (i.e., investment portfolios) rely on making their accounts joint with family members since a joint account with right of survivorship means that the account will pass automatically to the surviving family member. This can be a dangerous strategy. While joint ownership with family members may be used as part of you Estate plan, extreme caution should be exercised because joint accounts can lead to problems such as:
- If the joint accountholder is an American citizen/Green Card holder or resident this can have implications with the '' IRS '';
- Making an account joint implies a loss of control over the account (which can be a big problem in case of family conflicts etc.);
- Adding a joint accountholder means exposure to the joint accountholder’s creditors (including the joint accountholders ex-spouse in the event of a divorce);
- In Ontario litigation is common surrounding joint accounts since it can be unclear whether the primary accountholder’s intention was to make an absolute gift of the account to the joint accountholder or to create a trust in favor of other beneficiaries.
It is also important to note that having a joint accountholder is not a will substitute since the joint accountholder may die before or simultaneously with the primary accountholder.
Will for Ontario Movable Assets
We prepare these types of wills, but it will be necessary to consult a lawyer in the client’s country of domicile to ensure that the will is consistent with the laws in that country. Forced heirship laws, which exist in many countries in Europe, Central and South American, may limit the client’s testamentary freedom, and a will that does not take these restrictions into account may not be valid.
Wills for Ontario Immovable Assets
A will dealing with immovable property in Ontario must be executed in accordance with the strict formalities required of Ontario law. If it is not, it will be invalid and ineffective. There are certain peculiarities of Ontario law which may not be complied with, if the will is not prepared by an Ontario lawyer.
In the absence of a valid will in regards to your Ontario immovable assets, Ontario intestacy laws will apply to the disposition of your immovable assets situate in the province over the laws of your country of domicile. As a result, the people who ultimately receive your Ontario immovable assets may not be the people who you would have wished.
What Happens when I Die?
It is essential that you appoint an executor in your will who is a resident of Ontario. Your executor will be the person in charge of managing your Ontario Estate, applying for probate and other administrative and legal matters; e.g., completing the final tax returns, changing account ownership, selling property, etc.
You can name one or more executors in your will. If you do not have an appropriate person in Ontario to act as your executor, we may be able to help by offering you a professional executor service. Please consult us for details.
Beneficiaries
To prepare your Ontario will, you will need to provide us with the following information regarding your beneficiaries:
- Complete and original names (if married);
- Ages and dates of birth;
- Addresses;
- The same information is required for appointment of alternate beneficiaries.
Property
It is useful for the lawyer who will draft your will to have a list of your assets and where they are located. Your specific assets will not generally be listed in your will (since they are subject to change), but this information will be needed when it comes time to administer your Ontario Estate. In preparing your Ontario will, we may also need to know some things about the nature of your assets; for example, whether they are movable or immovable property, the value of your Ontario assets as a percentage of your overall Estate, etc.
Will Storage
Your executor will need to have access to the original will in order to apply for probate. The Ontario courts do not accept certified copies. If our firm is acting as professional executor, we will be able to store your will securely at no additional cost.
Contact us
For more information on estate planning, please contact me.
Paul Taylor
Taylor Estates Law
T.416.995.4024 Email: paul@taylorestateslaw.com