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Your property, and your family, deserve to be protected in your will

In these times of economic uncertainty, Canadians who own their own homes may be thinking about protecting them from health risks due to the COVID-19 pandemic.

For most homeowners, their houses and condominiums are their largest single assets. In the last couple of months, many Ontario lawyers have noticed an increase in inquiries from clients who want to prepare their wills and protect their homes from the provincial government’s 1.5 per cent estate tax. That’s $15,000 on a $1 million house.

Clients typically ask:

• who they should name as estate trustee to liquidate homes and other assets;
• how the proceeds can be sheltered so their spouse or children will efficiently receive their share;
• how title can be registered to avoid probate fees and the eight-plus months it takes for the courts to issue a certificate to the estate trustee, allowing the home to be sold;
• who will look after the property during the delay.

I recommend everyone with any significant assets, like a house or condominium, preparing their wills.

Common-law spouses with separately-owned assets often do not consider the need for wills. Recently, one of my clients passed away prematurely, and without a will. He was in a long-term relationship with his common-law spouse and, unfortunately under Ontario law, she is not treated as a surviving spouse and may get little or nothing from the sale of the house in which they lived, or his other assets.

New parents — especially those who own or are about to purchase a home — should have wills, even if their debts exceed their current assets. Wills can also establish written instructions for the care of their children, and direct the care of their money and property.

Dealing with real estate, cash, stocks and other assets is problematic if there is no will or a badly drafted one.

Historically, a will must be signed in front of two adult witnesses who are not beneficiaries or spouses of beneficiaries, with all three people present in person at the same time

But under an emergency order passed by the Ontario government, wills can be witnessed in a videoconference if one of the witnesses is a licensed lawyer or paralegal. In this case, three identical documents each bearing one ink signature will, when attached to each other, be treated as one will.

Another option is for a single document to be circulated among the person signing the will and the two witnesses. The three signatures are placed on the same document during three separate videoconferences, with each person watching the other two sign.

While making a will, it’s also a good idea to prepare a power of attorney for property — including real estate and bank accounts — and a power of attorney for personal care. These documents can save considerable grief when a person is unable to make their own decisions.

Bob Aaron is a Toronto real estate lawyer and frequent speaker to groups of home buyers and real estate agents.
He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.