Wills

Why Do You Need a Will?

Your Will makes sure your property and money end up in the right hands.

If there is no Will, then by default, after paying all of your debts, your money and property (collectively called your “estate”) will be distributed to certain people, and in certain proportions. The following chart demonstrates in a general way how this will occur in Ontario:

If you have a surviving spouse, but no children, your spouse receives your entire estate.

If you have a surviving spouse and one child:

  • your spouse gets the first $200,00.00
  • your spouse gets ½ of the remainder
  • your child gets the other half

If you have a surviving spouse and at least two children:

  • your spouse gets the first $200,000.00
  • your spouse gets 1/3 of the remainder
  • your children share the other 2/3 of the remainder equally
  • if any of your children die before you, and they have children of their own, those grandchildren will get their deceased parent̓s share, equally

If you have no surviving spouse but you have children:

  • your children share the estate equally;
  • if any of your children die before you, and they have children of their own, those grandchildren will get their deceased parent̓s share, equally

If you have no spouse and no children:

  • your grandchildren share the estate equally
  • if you have no spouse, no children and no grandchildren your parents share the estate equally
  • if you have no spouse, no children, no grandchildren, and no parents, then your brothers and sisters share the estate equally
  • if you have no spouse, no children, no grandchildren, no parents and brothers or sisters, your nieces and nephews share the estate equally
  • if you have no spouse, no children, no grandchildren, no parents, no brothers and sisters, and no nieces and nephews, your aunts and uncles share the estate equally
  • if you have no spouse, no children, no grandchildren, no parents, no brothers and sisters, and no nieces and nephews, your first cousins share the estate equally

While this might seem like a logical approach, it doesn’t take into account who might need more of your estate, or who might be more deserving. That can’t happen if you don’t make a Will.

Mechanically dividing the estate into certain shares might require selling something that you would rather be given to a loved one or close friend. This might not be the result if you don’t make a Will.

If you own a business, you might be able to save your family a lot of money through proper Will planning. This won’t happen if you don’t make a Will.

Your Will allows you to decide who is in charge of paying bills, canceling accounts, selling assets, and paying legacies.

The person in charge of taking care of your estate is usually called the executor. The technical legal term is “estate trustee”. I will call this person the executor.

Being an executor can be an awful lot of work and time. An executor should be someone who has the time to do the job. She should be competent in bookkeeping, organized and detail-oriented. She should be familiar with your own assets and finances because she is going to be dealing with them in great detail. She should not live far away, because she will have to be physically present in order to be able to preserve assets, go through your own paperwork, and generally take care of all of the other tasks, such as going to your bank to close accounts, selling things if necessary, and so on.

We always recommend that you name at least two people as executor. This can either be a first choice and a second choice, who would step in if your first choice is either unable or unwilling to do the job, or it can be two people who would act together. Sometimes having two people allows for two different skill sets to be employed.

Your executor does not have to be a family member, although this is the most popular way of selecting someone.

Our executor should be someone who you would expect will outlive you. Having a backup or second choice (a “Plan B,” so to speak) is a good safety measure in case your first choice is gone.

Your Will appoints the guardian of your children.

If you don’t appoint a guardian for a dependent child, then someone – usually a family member – will have to apply to the government to be appointed as legal guardian. This might not be the person that you would have wanted to raise your children. Ontario law strongly favours close blood relatives, even if someone else might be a far better choice.

Your Will makes sure people don’t get their legacies before they are ready.

Under Ontario law, as long as a person resident in Ontario is over the age of majority (currently 18 years old), they are entitled to receive their bequest, unless the Will says that they must be older than that. If they live elsewhere, then the legal age of majority of the province or state in which they live applies. Your Will could require that a person be 21, 25, 30, or even 70 years old before they receive their share in your estate. The oldest age that we’ve ever specified in a Will is 60 years.

 

Why You Should Have a Lawyer Prepare the Will

In order to be valid, a Will must follow certain formalities. A properly trained lawyer will know what these formalities are and will make sure that they are followed.

  • It must be signed by the maker.
  • It must be dated.
  • It must be witnessed by two witnesses (the only exception to this is if the Will is written entirely in the maker’s own handwriting).

Neither witness should be a beneficiary or the spouse of a beneficiary or of the maker. Otherwise, the gift to that beneficiary is nullified (but the rest of the Will is still valid).

The Will should cover all of the maker’s property (there are some exceptions in the case of multiple Wills, which we will discuss elsewhere). We have seen several Wills which do not give away all of the maker’s property. In each case, a lawyer did not prepare the Will. If any property is left out, then there is no Will which deals with that property (see my comments above about what happens when there is no Will).

As a result, an effective Will should include what lawyers call a “residue clause,” which gives away everything not otherwise mentioned.

The Risk of Do-It-Yourself Wills

Years ago, we read a Will which the maker wrote himself. It not only failed to give away all of his property, but also gave one person half of his house. To try and make sure that only 50% of his house was given, he transferred a half interest in the house to that person.

The legal result was that his Will gave an additional quarter interest to the person who had already received half. They ended up with 75% interest of the house.

Had he consulted a lawyer, it’s likely that the end result would have been what he actually wanted.

Find a Lawyer to Prepare Your Will >>