The Rural Voice, 1983-02, Page 13WILLS AND THE ADMINISTRATION
OF ESTATES, PART 11
The next important consideration after
the selection of an executor is that the
appointment should be confirmed with
the potential executor so that you know
that he is willing to act. The executor
should also be given certain information
such as the location of your original will
and particulars of a safety deposit box. It
is also sometimes a great advantage if
you let your executor know that the will
contains specific bequests of organs for
medical purposes, etc... or if there are
some special burial instructions such as
cremation.
The executor having been selected, the
person must now turn his attention to
selecting beneficiaries for his estate. As
mentioned earlier, all debts and taxes
owing by the decreased must be paid and
satisfied from the assets of the estate
before anything is transferred to the
beneficiaries. The basic rule governing
such situations is that the deceased is
entitled to leave his estate to absolutely
anyone he pleases.
Firstly, the assets cannot be left in
such a way that they ignore dependants
of the deceased, such as a dependant
spouse, or a dependant child. The person
making the will must also be aware of the
fact that assets held jointly and assets
with named beneficiaries such as insur-
ance policies are not transferred by the
will and therefore must be dealt with
separately. The lawyer can advise the
individual as to the legal restrictions
affecting his choice of beneficiaries but it
is •the individual's decision as to the
actual selection of beneficiaries. The
lawyer will try to accommodate his
wishes and draft his will in such a way as
to carry out these wishes.
At this point it might be appropriate to
mention that it is not impossible to draw
your own will without the assistance of a
lawyer, however, it would be my sugges-
tion that this is very impractical. The
Ontario Law recognizes certain situa-
tions where a handwritten will is valid,
however, in most general circumstances
a will is required to be in writing and
Robert S. Johns, L.L.B.
is a sole practitioner of law
at 218 Main St. W., Listowel
witnessed by two individuals who are not
beneficiaries under the will. 1 would
suggest to you that there are simply too
many pitfalls that can be encountered by
an individual trying to draft a will on his
own.
Although there are many examples of
technical legal problems that a person
can encounter in drafting his own will,
one of the best examples of some of the
difficulties that arise can be illustrated by
this example. I recently probated a will
for the executors of an estate in which
there was a clause that read "divide my
coin collection equally between my
grandchildren according to face value". A
cursory examination of the clause would
seem to indicate no problem, however,
what in fact does it mean? Do we assume
that the Testator wished that each
grandchild receive equal value or do we
assume that the Testator meant that each
grandchild receive an equal number of
pennies, an equal number of nickels. etc.
It would be very easy to resolve the
dilemma if the Testator could be asked
what he meant by the clause: however,
when dealing with wills, this is one
luxury that is not afforded to the
executors, since the person who is
supposedly speaking through the will is
now dead.
After the Testator's death, executors
should immediately try to locate the will
of the deceased and determine in some
cases with the assistance of the solicitui,
the actual instructions which have been
left for them in the will. The time element
may be important at this stage since the
will may contain instructions concerning
the type of burial and/or cremation the
deceased wishes and may also provide
for the bequest of certain body parts to
medical institutions which in most cases
would have to be done immediately after
the death. The executor then, with the
assistance of the solicitor, interprets the
instructions contained in the will and
begins the process of accumulating an
inventory of what assets and liabilities of
the deceased will have to be dealt with in
the administration of the estate. Once
this has been completed the grant of
probate is applied for at the applicable
Surrogate Office, in effect, approving the
executor as the representative of the
deceased. In most cases at this time an
advertisement is run in local newspapers
by the executor to determine whether or
not the deceased has any debt that must
be paid from the assets of the estate. At
this stage as well, the executor will be
involved in the collecting of any accounts
receivable whether it be wages owed to
the Testator or merely debts owing at the
time of his death.
During this procedure the executor
will. depending on the circumstances,
have to make arrangements to provide for
the continuing operation of the de-
ceased's business and make whatever
business decisions are necessary to
provide for the continued operation. The
executor, with the assistance of the
solicitor and the accountant, arranges for
the filing of the necessary income tax
returns as required by the Income Tax
Act. Finally after all necessary clear-
ances and debts have been paid, the
terms of the will are interpreted and the
actual distribution among the benefi-
ciaries takes place. The time of the
distribution is governed by the instruc-
tions in the will and the ages of the
various beneficiaries mentioned.
To this point we have basically tried to
outline the reasons for and some of the
general procedures involved in the draf-
ting of the will and the administration of
a person's estate after death. I would
hope that I have succeeded in convincing
the readers that a will is an absolute
necessity. However, before closing I
would like to briefly outline for you some
of the distribution rules which apply if in
fact a person dies without a will. In the
first place a person does not choose his
executors. The Court appoints what is
called an administrator of his estate who
has the authority to administer the affairs
of the deceased. The administrator
attends to the payment of the debts and
taxes and the collection of the monies
owing to the deceased and then proceeds
to distribute the estate to the benefi-
ciaries, as determined by The Succession
Law Reform Act, at such time as they
reach the age of eighteen years.
The death of a loved one is a very
traumatic experience and surely we all
feel that we should try to soften the blow
as much as possible by leaving our_
affairs in as orderly a state as possible.
THE RURAL VOICE, FEBRUARY 1983 PG. 13