I Am Separated – Do I Need To Make Or Change My Will?

I Am Separated – Do I Need To Make Or Change My Will?

I am separated – do I need to make or change my Will?

I am always surprised at how many people do not have a Will, despite having children and significant assets.  Of course, facing our own mortality is not a pleasant experience and many of us delay and rationalize until something happens in our lives that forces the issue.  A loved one becomes ill or passes away, or their marriage ends and their family law lawyer raises the issue.  Certainly, this is one of the first issues I address when meeting with a family law client.  In short, a Will is an essential document which will almost certainly ease the burden for those you leave behind.

Dying without a will can have serious and unintended financial consequences.  If you are separated from your spouse, the consequences are likely to be even more significant.  You probably do not intend for your estranged spouse to inherit most or even all of your estate should you predecease him or her, but this is what is likely to occur if you do not have a Will.   You may be in the process of negotiating or litigating the division of family assets and you may not have given any thought to what happens to your share of the assets if you die before the division is complete.  No doubt you want your children or your parents or your dog to get your assets before your former spouse but, without a Will, you have no say.  Your property will be distributed pursuant to the Succession Law Reform Act which gives the surviving  spouse the first $200,000 and half of the remainder.  This may result in a significantly different division of assets than would have taken place in the family law proceedings. So, make a Will and then you have at least some control.

The reason you have only some control is that your spouse can elect to set aside the Will and proceed with a division of property under the Family Law Act as though both parties were still alive.  But that’s fine.  He or she has the same entitlement as if you were alive.  After your property is equalized under the FLA, your Will governs the distribution of your remaining assets.

Estate planning is an important part of #separation, #divorce, and #equalization.

Written by Simonetta Lanzi

Author | Simonetta A. Lanzi | Family Lawyer
Simonetta practices family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact

Estate Administration Tax

Estate Administration Tax

Estate Administration Tax: An Overview Before Applying for a Certificate of appointment of Estate Trustee

If you require a Certificate of Appointment of Estate Trustee, the estate administration tax (EAT) must also accompany the application to the Ontario Superior Court of Justice. There are a few exceptions for paying EAT, as outlined under Rule 74.13(2)-(4) of the Rules of Civil Procedure. The EAT is paid to the Minister of Finance and is based on the value of the deceased’s property at the time of death. 

The Estate Trustee is obligated to pay a higher tax if it is established later on that the value of the estate is greater than what was originally submitted. The Estate Trustee may also get a refund if EAT was based on an estimate and was overpaid (s 3 of the Estate Administration Tax Act, 1998)

What is included in calculating the Estate Administration Tax? 

Generally, the fees are based on the deceased’s assets under his or her name alone. As an example, jointly held property that passes by right of survivorship is excluded from the calculation. Benefits payable to a designated beneficiary under a “plan,” as defined by Part III of the Succession Law Reform Act and proceeds from life insurance on the deceased payable to a designated beneficiary are excluded. Real property that is located outside of Ontario is also excluded from EAT calculations. Most debts and liabilities will not reduce the value of the estate for EAT purposes, with the exception of an encumbrance registered against the real property of the deceased: s 1 of the Estate Administration Tax Act, 1998. 

How are these taxes calculated? 

Section 2 of the Estate Administration Tax Act, 1998 states that if the value of an estate does not exceed $1,000, then no EAT is paid. 

The formula for calculating the EAT is as follows (s 2(6) of the Estate Administration Tax Act)

$15 for each $1,000, or part thereof, of the value of the estate exceeding $50,000. 

The Ontario Ministry of Attorney General provides a chart detailing EAT amounts based on estates valued from $1,000 to $5 million: