Often you will hear people say,” I don’t need a Will, I don’t have anything”. Then they tend to list the car they own, the small RRSP account and the home they just purchased. However, according to them, they don’t need a Will. Sadly over 50% of Canadians feel this way and as a result do not have a Will. I’ve also heard many people say “it doesn’t matter, my spouse will get everything if I die”. Not necessarily true. The reality is, if you die without a Will, provincial law will dictate how your estate will be distributed and it is unlikely that these laws will reflect your actual wishes. Not to mention the major delay in settling your affairs due to government and/or court involvement as someone must be named to act. In some cases distributions can be delayed for over a year from the date of death by law.
Here are just a few examples of what would happen in Ontario if you were to die without a Will:
• If you have only a spouse – the entire estate goes to that person – but be careful on defining spouse – common law partners may not be caught in this definition under the Succession Law Act in Ontario.
• If you have a spouse and one child – Your first $200,000 goes to your spouse. The remainder of your property is spilt into 2 shares – half of that goes to your spouse and half to your child.
• If you have a spouse and more than one child – Your first $200,000 goes to your spouse. The reminder of your property is spilt into 3 shares – one third goes to your spouse and two thirds go to the children in equal parts.
• If you have no spouse and only children – All children share equally.
• No spouse and no children – The entire estate goes to parents or the surviving parent. If no parents are living, siblings share equally. Children of a deceased sibling take their parents share if they have passed. If only nieces or nephews survive, they share equally.
A better alternative is to create a Will where nobody has to guess what your wishes are and no provincial law decides for you. You can consider exactly who you want to inherit your property and consider providing children and grandchildren with a responsible inheritance. Perhaps leaving a large sum of money to a child in their 20s is not ideal. Here you can contemplate the use of a trust. Using this tool you can control the age or circumstances under which they will inherit the money. You can make clear your wishes for custody of your children should you and your spouse die while they are still minors.
Most importantly in this industry, the executor will have the authority to make funeral arrangements (and be able to access the finances to pay for the funeral expenses), handle your affairs and do so quickly during a difficult time. The Will may also tell the executor how they want to be buried or cremated or how they want their life celebrated. Having a Will provides comfort to the deceased during their lifetime and much more comfort and clarity to loved ones after death occurs. Sharing the plan in advance with loved one’s increases the peace of mind and reduces the “surprises” that some discover after a death occurs.
Great, you are convinced that a Will is important! Now go to a lawyer and get one drafted. This is not a place to be cheap. A proper Will done right will save your family headaches, fights and litigation after you die. Well hopefully. I can’t promise you that unfortunately, but it does certainly reduce the chances. A lawyer will also suggest that you do your Power of Attorney for Property and Power of Attorney for Health. FBA
Andrea Love began her career at Legacy Private Trust eight years ago. For many years now, Andrea has been responsible for running operations at Legacy as well as forming new partnerships with funeral homes and cemeteries on their preneed trusts, care & maintenance trusts and helping their clients and families faced with the role of being an executor, with the complex job of settling an estate. Andrea is involved in fundraising and volunteers with many charitable organizations. Andrea is a qualified Trust and Estate Practitioner (TEP).Andrea can be reached at [email protected] or phone at 416-868-4209.