Wills basics, and finding the papers

Denise Thompson is fifty-six and drives a city bus in Toronto. Her mother, Beverley, is eighty-three, came from Jamaica in 1968, and still runs the bake sale at her church. Over Sunday dinner, Denise asks, carefully, whether there's a will. Beverley laughs. It's in a drawer somewhere, she says. I wrote it myself, by hand, years ago. Nobody needs a lawyer for that.

So here's the question. Does a handwritten will count in Ontario, what has changed lately, and how does a family find the papers before anyone needs them?

First, this is general information, not legal advice. For your family, talk to a lawyer or a legal clinic. Now the law itself. Ontario's Succession Law Reform Act says a typed will must be signed at the end, with two witnesses who are both there at the same time. But a will written entirely in the person's own handwriting, and signed by them, can be valid with no witnesses at all.

Some things changed in 2022. Since January first of that year, getting married no longer cancels an existing will. That matters if a widowed parent remarries. A court can now also accept a will that wasn't signed or witnessed quite right, if it clearly shows what the person wanted. That's a court process, though, not a shortcut. And the government offers no will kit. It recommends a lawyer.

Next, finding it. There's no public registry you can search. A will can be left with the court for safekeeping, but most families find it at home or with a lawyer. So check your parent's papers, any safe-deposit box, and their lawyer's office. After a death, the person the will names to handle things, called the estate trustee, usually applies to court for an estate certificate, often called probate.

That comes with Ontario's Estate Administration Tax. There's nothing on the first $50,000, then $15 for every $1,000 above that. An estate worth $150,000 or less counts as a small estate, with a simpler court process. A lawyer, or the Advocacy Centre for the Elderly, a free legal clinic for older adults, can explain which applies.

Now, their side. To a parent, a question about the will can sound like counting the inheritance. Beverley may also be proud that she did it herself. So keep the talk about her wishes, not the money, and keep it apart from any talk about her care. You might ask, is there anything you'd want us to know, so we get it right for you?

Let's change one fact. Beverley separated from her husband ten years ago, but they never divorced, and her handwritten will still leaves him the house. Since 2022, when spouses are separated at the time of death, a gift to the separated spouse is generally treated as if that spouse had died first. The details depend on the facts, so this is exactly the moment to see a lawyer.

The mistake families make is believing the power of attorney carries on after a death. It doesn't. A power of attorney ends when your parent dies. From that moment, the will and the estate trustee take over. So the child who paid every bill for years may have no say at all, unless the will names them.

Here's the rule, in one breath. Know where the will is, know whether it was made properly, and remember that the power of attorney stops at death and the will takes over.

This week, make a one-page list of where every important paper is kept: the will, the powers of attorney, bank and pension details, the deed, and the lawyer's name. Ask your parent to help, and keep a copy you can both find. Next time, a new module on money and work, starting with the tax credits caregivers miss.