Executors: Do You Need to Probate All Wills?

As estate trustee, here are some things you must know about wills:

1. Wills are legal documents.
2. Wills are subject to scrutiny and legal interpretation.
3. Wills can be declared invalid by a court.

What happens if Jack’s 2013 will is contested in court? The court can declare it is invalid. That could mean Jack’s prior will, made in 2010, is his true last will.

Hopefully, you did not destroy the 2010 will thinking it was useless. You may later need to probate the 2010 will.

A will names an executor to be the estate’s legal representative.

Executors must find the original will and obtain legal advice to follow instructions. Normally, the will is probated – approved by a court to confirm the executor’s authority.

Probate tells institutions like banks and brokers that you are the estate administrator.

Probate also confirms who is entitled to share in the estate. Usually, you must probate the last will to transfer or sell estate assets.

Are there different kinds of Wills?

Here are some types of Wills you may come across:

1. Simple Will – this can be a few lines on paper, properly witnessed. “I leave my house to my husband, Jack.” Signed by Mary and witnessed by Harry and Betty.

It does not give the executor a great deal of directions. What about the contents of the house? Is the car in the garage included?

2. Testamentary trust Will – trusts are usually used for minors, spendthrift individuals or those unable to manage money. Trusts are also income tax-saving devices.

A trust can be created by the terms of the will. A trust can be used to hold specific property like or cottage or business. The trustee or executor operates the business for the benefit of the trust beneficiaries.

The terms of the trust are usually specific. The trustee could also be the executor and is given powers to handle the trust property.

3. Holographic Wills – must be 100% in the deceased person’s handwriting. These do not need to be formally witnessed. Holographic wills are valid in Ontario, but not in every jurisdiction.

A few handwritten lines found in a notebook could be a valid holographic will. The document must be signed by the testator. There must be an intention the writing be treated as a will. Usually this means that it comes into effect only upon a person’s death.

4. Video Wills – videotaped wills are not valid in Ontario. They may be permitted for limited purposes in some jurisdictions in the United States.

5. Joint Wills – are usually a bad idea and have been discouraged for years. Typically, Mr. and Mrs. Jones, write out a will specifying how they wish to handle their estates. They hope to save money by writing one will rather than two.

A problem arises when Mr. Jones dies. Can Mrs. Jones change her will? Or did she agree with her late husband not to change anything?

Is Mrs. Jones contractually obligated not to alter her will after Mr. Jones dies?

And what happens if Mrs. Jones remarries? In Ontario, her remarriage would normally revoke all previous wills. But what if is there a contract to keep a mutual will with the same beneficiaries?

6. Living Wills – are not wills at all. What is confusing is that the term suggests that a living will deals with property. However, living wills are usually medical directives dealing with dying. They tell doctors and hospitals what to do in case of an illness. They are effective if a person is unable to communicate their healthcare wishes.

You can see that not all wills are the same. On the surface, you may not be able to detect what is legally valid.

More Tips about Wills

• You need to rely on the last valid will for your authority as executor.

• Always have a will reviewed by an estate lawyer before you make commitments.

• Do not sign or commit to any contractual obligations until then.

What if the will gives you confusing instructions? I’ll cover this in my next post.

About Ed

Edward Olkovich (BA, LLB, TEP, and C.S.) is a nationally recognized author and a Toronto estate lawyer and Certified Specialist in Estates and Trusts. Edward has practiced law since 1978 and is the author of seven estate books including Executor Kung Fu: Master Any Estate in Three Easy Steps. Visit his law firm’s website, mrwills.com, for more free valuable information.