What is a Will?
A Will is a legally binding declaration of a person’s wishes regarding the disposition of his or her estate after death. Typically, a Will includes clauses such as: identification of the person making the Will; revocation of all previous Wills; appointment of executors and guardians; payment of debts and taxes; specific gifts or legacies; residual bequests (including trusts); and administrative clauses.
Why Make a Will?
Many benefits result from making a Will, including enabling you to:
- Decide who will handle your estate and distribute your assets
- Decide who will receive your assets in accordance with your wishes
- Reduce or defer taxes
- Avoid disputes and litigation (e.g., by providing directions for special property or items)
- Create trusts, (e.g. for minor children)
- Donate to charity upon death
What If I Don’t Make a Will?
If you do not have a Will, on death, your property will be disposed of according to the provincial laws of intestacy (under the Succession Law Reform Act in Ontario). This means:
- Your assets may not be distributed as you would have chosen, they may even pass to heirs you did not intend to benefit
- If you are married with children and your assets exceed $200,000, your spouse will not be entitled to the entire estate
- Assets for minor children will be paid to the Accountant of the Superior Court of Ontario. The Accountant will make investment decisions with the Office of the Children’s Lawyer (the OCL). The OCL will help determine what amounts will be paid for your children’s maintenance while they are minors. At the age of 18 the funds can be released to the child unless they are legally disabled
- If you have a common-law or same-sex relationship, your partner can seek financial support from your estate, though he or she has no automatic property rights
Your estate requires someone to volunteer (or the court to appoint someone) who may not be optimal for the role of estate trustee. They may be unfamiliar with your assets and lack financial or administration knowledge. The individual will also be required to post a financial bond twice the value of the estate as security.
Estate Planning By Choice
A Will allows you to plan your estate by choice instead of default. You may write a (holograph) Will entirely in your own handwriting and sign it without witnesses or have your Will prepared by an estate planning lawyer who develops an understanding of your needs and drafts according to your objectives. The legal fees involved to prepare a Will, which ensures you receive the appropriate advice needed and reflects your wishes, are modest relative to the importance of leaving your affairs in good order, including the avoidance of litigation after your death. Stationary or internet forms and Will kits are not recommended.
