A Last Will and Testament, is a legal document that outlines and sets forth your wishes regarding the distribution of assets, property and the care of minor children (if you have any). To finalize and officiate these wishes, you should have a wills and estates lawyer prepare your will.
When you create a will, you have sole discretion over any and all assets that you choose to distribute in the event of your death. This includes your personal belongings, family heirlooms, vehicles, and properties. Also, if you are a business owner, a will can allow for a smooth transition of your business to a new owner whether inside or outside the family. Family businesses are a huge source of litigation and these fights can be reduced if not eliminated by having a detailed will.
Are Wills Really That Important?
Your family and loved ones are the most important part of your life. In order to make sure that they are protected, and that your estate is properly divided among them, wills are crucial. There are so many factors that you may not realize that can change the outcome of an estate in a flash.
Ultimately, it is one of – if not – the most important documents you can have. So yes, it is very important. There are a seemingly endless list of 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 dictate who will be inheriting your estate. This puts any distribution that you may have had in mind to a complete halt. Through this formula, it can often result in undesirable results.
If you are a business owner, a corporate will can allow you to keep your business assets separate from your personal ones and will not force it to go through probate. Meaning that the corporate will holding your business ownership will not go through probate and not be subject to the administrative tax (probate fee).
Areas of issues when dying without a will
If you simply want to leave everything to your married partner, and you have no children, then without a will your legally married partner has the right to your estate. However, if you and your partner are unmarried or in a common law relationship then your partner does not have the same right.
Of course, this can cause many issues for your significant other. Without a legal marriage, they are not allotted any automatic benefits if you are to pass without a will. In Ontario, a common law, or unmarried partner is not considered to be a next of kin under the province’s Succession Law Reform Act.
If you die without being married, the act outlines a list in which your estate will be distributed. Under the act, if you’re not 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
Nowhere in this list does it consider a partner or common-law spouse to receive any part of your estate.
What about your children?
This is another factor that is overlooked, and one that creates many issues in your surviving family. While the children will still receive significant portions of your estate without a will, it will not necessarily be divided how you, or they, expected it to be.
This can cause arguments or differences between your children regarding certain assets in your estate. A large reason behind this is the sentimental attachments to property or heirlooms. While there may be an “equal” division of your assets, your children may not see it that way if there was a sentimental connection to a property, or one child wanted an heirloom to pass on to further generations.
If these differences cannot be solved, and the children cannot come to a conclusive division of assets then the articles of the estate are forced into sale and division of the estate will just become one of finances.
Things to keep in mind
Having a will is crucial if you want to ensure that your loved ones are protected, your possessions are distributed how you want them to be and even that the shares and assets of your business are protected and transitioned properly. While Ontario may have some statutes and provisions set in place to divide your estate after your death, it surely won’t be divided the way you would have wanted.
Commonly Asked Questions about Wills
Q: Do I really need a Last Will and Testament?
YES! Here are my top 5 reasons why you need a Last Will and Testament
- Common law spouses do not have property rights and they will inherit property under the law in Ontario. Your estate would go to your closest living relative and completely bypass your common law spouse.
- If you have children, your legally married spouse will not inherit everything. Your spouse will only inherit the first $200,000 of your estate and then would equally share the remainder with your children.
- If a minor child inherits more than $10,000, the surviving parent will have to apply to the Office Public Guardian Trustee and ask permission to become the Guardian over the money. A parent is not an automatic Guardian of your child’s money.
- A proposed Estate Trustee or Guardian may be required to post a bond with their application. Posting bond could be as high as three times the worth of the estate.
- You can reduce tax exposure. By reviewing your assets with a lawyer, we can identify issues you may not think about on your own. There are planning tools such as double wills, beneficiary designation forms, family trusts, capital gain planning, and joint tenancy just to name a few.
Q: What happens if I die without a Last Will and Testament?
The Ontario Succession Law Reform Act takes over and dictates who will be the beneficiary of your estate. If you are legally married with children, your spouse will not receive your entire estate! If your children are minors, the Office of Public Guardian gets involved too. A surviving parent is not the guardian of your child’s money. If you are a common law spouse, you will have no automatic inheritance and will be limited to making a claim against the estate as a dependent or under a constructive trust claim.
Q: What is a “Corporate Will” or a “Second Will”?
Typically, one person would have one Last Will and Testament that handles all aspects of their estate. But the Ontario Supreme Court changed this idea with the ruling in Granovsky Estate v. Ontario. In this case, the court accepted the concept that a person could have two Wills; one Will that pays the administration tax and goes through probate and a second Will that does not go through probate and avoids the administration tax. This created the Primary and Secondary Will concept. Imagine two buckets: One bucket holds all your personal items such as your bank accounts, real estate and personal belongings, and the second bucket only holds your corporation ownership. By separating these assets, only the assets in your primary Will would go through probate and be subject to the administration tax (probate fee). The secondary will that only holds your business ownership will not go through probate and will avoid the administration tax.
Q: Does marriage revoke my will?
YES!! Under the Succession Law Reform Act, a will is revoked by marriage unless the will specifically state that it was made in the contemplation of marriage.
Q: Does Separation revoke my will?
NO!! Since you are legally married, your spouse will inherit under your will or under the Succession Law Reform Act. The spouse has the right to choose between the rights under the will or the rights under the SLRA.
Q: Does divorce revoke my will?
NO!! Divorce does not automatically revoke your entire will. The Succession Law Reform Act will invalidate any gift or appointment made to your ex-spouse, but not the entire will. This easily could result in an undesirable outcome.
Q: Does divorce revoke my beneficiary designations for life insurance or RRSPs?
NO!! These designations will be honoured regardless of the status of your relationship. This includes second marriages. You must take proactive steps to change these beneficiary designations.