By Alicia Natividad, B.A., L.L.B

Last month a member of the Filipino Canadian community died suddenly.  Some of you heard about it and were at her funeral to share in the grief and suddenness of her death.

Like many Filipinos she left the Philippines to find a better life which she did in Canada.  She worked hard and saved her money to send to her relatives in the Philippines. 

Unfortunately, she died without a Will.  The consequence is that, instead of her relatives being able to liquidate her assets immediately upon her death, they have to wait until someone applies to be the estate trustee to administer her estate.  Essentially, her estate is frozen and no one can liquidate any of the assets until a Certificate of Appointment of Estate Trustee without a Will is applied for in the Ontario Superior Court of Justice.

There is a cost to making the application for the Certificate which could have been averted had she died with a Will.  If she had a Will, the person who is appointed as estate trustee would have  the power to request information about her assets and do the necessary things to transfer the assets to her relatives in the Philippines.  As it is, the relatives in the Philippines must wait until the application is completed before the administration of her estate can begin. 

The other effect of not having a Will is that the person applying for the Certificate is required under the Estates Act to post a bond which is twice the total value of the estate.  The court has the discretion to decide whether or not a bond is necessary or to reduce the amount of a bond.  Had there been a Will, the estate trustee would not be required to post a bond if there is a provision in the Will that a bond is not necessary.  The reason for the bond is to ensure that the estate trustee appointed by the court will complete his or her duties and preserve the assets of the estate.

The overall effect of a person dying without a Will is to delay the administration of his or her estate, to make it more costly to administer the estate, and to make it more difficult for those friends or relatives who are called upon to wind up a person’s estate.

A Will is particularly important for a couple who die together leaving children who are minor.  Having a Will would be beneficial since it will specify who will be the guardian of the minor children.  The guardian will then make the appropriate application to the Ontario Superior Court of Justice within ninety (90) days of the parents’ death to confirm the guardianship.  If there is no Will, then, someone must come forward to take care of the children and to make the application to the Ontario Superior Court of Justice.  In the meantime, until there is such guardianship application, the children will be under the care and custody of the Public Guardian and Trustee.

So it is worthwhile to make it a priority to have a Will done as soon as possible.  It is worth the money that is spent in having a Will prepared by a lawyer.  Do not use the Will’s kit that is marketed on TV or that you can buy at Business Depot or anywhere else.  The effect of using the Will’s kit is the same as if a person died without a Will.