Wills are a personal and private matter. The only ones who know what is in your will are you, your lawyer, and anyone you might tell. Otherwise, a will is a private matter.
On your death, your will probably won’t remain a private matter. Most wills require your executor to probate your will. To probate a will means to prove the will in court and pay the Estate Administration Tax on the assets. Why probate a will, especially if there will be a tax? The reason is to deal with many assets of the estate, such as real estate, larger bank accounts, investments, and court actions. Applying to court for probate becomes a necessity. To probate or prove a will in court is usually not problem or difficulty, especially if your lawyer prepared the will.
Unfortunately, when you probate your will, it becomes a public document. Anyone can go to the court, pay the required fee, and obtain a copy both of your will and the amount of your assets shown when the application for probate was made.
There are privacy laws in place and our concern for privacy about our personal information is much greater than ever. Unfortunately, in modern life, so much is no longer private. Someone in the digital world already, and legally, knows a lot about you. Someone knows where you drive your car, if you use google maps. Someone knows what you are purchasing when you purchase online. Facebook knows your interests and targets its ads appropriately. Then there are the fraudulent uses and hacking that take place. Even in death, your personal information can be made public.
There are ways to avoid public disclosure. It is common tax planning to do a separate will if there are assets in a corporation. Here, this separate will does not normally need probate and remains private. There are trusts that can be set up to own assets and here no probate will be needed. A beneficiary designation in life insurance, RRSPs and RRIFs are also not public, as also is the case with joint ownership of investments. However, these approaches are not always appropriate.
For most people, your last wishes in your will dealing with all of your assets will be available to the public.
Howard Simmons is a Partner at Simmons da Silva LLP
Telephone: 905-457-1660 ext 245
Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice
