What is a Last Will and Testament?
A Law Will and Testament is a legal document that appoints who will be in charge of your estate and what your final wishes are in regards to the distribution of your assets upon your death. Your wishes are outlined in a document which will outline, among other things, who will be the beneficiaries of your estate (all your assets both real and personal) and how the distribution of your estate will go. You can also provide for who will become the guardian and custodian of your minor children, create trusts for minor or disabled children and even provide specific gifts.
Just how important is a will?
Studies and surveys over the last several years consistently indicate that more than half of all Canadians do not have a last will and testament. The importance of a will is something that is often overlooked, as people think “I don’t have enough” or “I only need a simple Will.” But, you don’t know what you don’t know! Your will is one of the most important legal documents that you can have. There are a numerous issues that can arise within your estate, and among your loved ones if you do not have a will when you pass. For example, without a will, your death will be “intestate”. In Ontario, this means that your estate will be subject to statutory provisions to determine who will be inheriting your estate. This, of course, goes against your personal wishes, and can also add several issues to an already overwhelming situation. For example, if you have a legally married spouse and children, your spouse will not get it all.
Seeing a lawyer who specialized in wills and estates to prepare your will can prevent many contentious issues from arising during an already emotional time.
How dying without a will may affect your common-law spouse and family
If you and your partner are unmarried or common law, you may inadvertently leave them out of your estate. Your common law spouse does not have the same entitlements as a legally married spouse. In Ontario, the Succession Law Reform Act does not include common law partners in the definition of spouse and therefore is not considered to be a next of kin under the Act. If you die without being legally married, the act dictates a hierarchy in which your estate will be distributed. Under the act, if you’re not legally married, your estate will:
- Go to your children
- If you have no children, then your next of kin would be your surviving parents
- If none, then your siblings
- Or if they are no longer alive, then it will be divided among nieces and nephews, etc.
Nowhere in this list does it consider a partner or common-law spouse to receive any part of your estate.
What about your children?
Children are another factor that be overlooked. There are several issues that need to be addressed in your will with respect to your minor children. If you do not appoint a guardian and custodian over your minor children, it is common for disagreement to occur within the family. Although they have good intentions, each family member from both sides of the family, has their own reason why they are the best or right person to take care of your minor children. To you, there may be a difference between who is the right person to take care of children on a day to day basis, but may be an entirely different person who needs to be in charge of their money. It may be left to a judge to decide what is in the best interest of your child.
Adult children also need to be considered. Questions such as do you have children from a previous marriage or relationship, are they disabled, do they live in Canada, do they have citizenship elsewhere, was there a loan or advancement of money to one child and not another? These are just examples of where things can go terribly wrong by not being properly addressed.
Things to keep in mind
The Wills & Estates team at Hummingbird Lawyers LLP can help you determine exactly what documents you should have in place as well as ensure that your wishes and the people closest to you are protected.
Contact the Wills & Estates team today to set up a will for your estate. The team can help save your family any stress and future trouble in an already upsetting, and often overwhelming, situation.