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Part 3: What if Stacy is not capable to sign a Will? What happens to her money?

intestate estate executor bond

In Part 1 of this 3-part post, I explored the question about whether Sandra’s daughter with a disability, Stacy, should have a Will given the few assets that she has. Last week’s blog post discussed the question of whether or not Stacy has the mental capacity to sign a Will which is referred to as having testamentary capacity. In this final part, I will explore what happens if Stacy is mentally incapable of signing a Will.

If Stacy dies without a Will, she would die “intestate”.  She would be unable to name a beneficiary to inherit whatever assets she may own at her death including what may be left in her Registered Disability Savings Plan (‘RDSP’). Instead, the balance of her RDSP along with the rest of her assets will be distributed according to Ontario’s intestate succession law. If Stacy is unmarried and has no children at her death, her parents , if one or both are alive, would share her estate.  If her parents are not living, Stacy’s siblings would share her estate equally.

Without a Will, Stacy is unable to name her choice of executor or estate trustee to administer her estate. Someone will need to apply to Court for a Certificate of Appointment of Estate Trustee Without a Will. Until someone is appointed by the Court, no one will be able to deal with Stacy’s assets, file her final tax return and so on. Unfortunately, her estate may also have to cover the cost of an Estate Trustee’s bond.  An application for a bond can be time-consuming and there is no guarantee of success.

Do you have a loved one with a disability and have questions about what, if any, estate planning they may be able to do?  Do you have questions about whether you have adequately provided for your loved one with a disability in your own Will? Call 613.836.9915 or email info@personalawgroup.com to make an appointment to meet with me. A review of your unique situation will allow us to fully explore the available options.

Reproduction of this blog is permitted if the author is credited.  If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information.  Please consult a lawyer or other professional to determine how the information in this blog might apply to you.

Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.

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