October 24th 2019 - Reposted from August 2016
Over 50 percent of adult Canadians do not have a will. That’s a scary number given the reality of passing away without one. Unfortunately, I have personally heard many heartbreaking stories where this is the case. It’s important to know and understand why it is so crucial to get a will done for both you and your loved one’s sake.
If you pass away without a will the law considers that you have passed “intestate”, which means you have died without leaving any instructions as to how you want your property (assets of your estate) distributed. In this case, the Ontario Succession Law Reform Act dictates how your property will be distributed.
Many people don’t have a will because they assume their spouse, partner, or children will automatically inherit the estate assets. While that may be partially true, there will likely be delays in accessing your property while your loved ones first have to deal with the courts - at a huge expense to them - to have a representative assigned to distribute your estate.
You may be thinking that you are too young, the costs to establish a will are too high or possibly you don’t have the assets a will requires. More often than not, these assumptions are wrong.
If you don’t currently have a will, you may want to consider the following:
1) Do you want the courts deciding who will be your Estate Trustee/Personal Representative? This will be the person responsible for distributing your property. Although this will likely be a close family member, it could be someone you would not have personally chosen. You may not have a relationship with this person and you may not trust them with your estate.
2) Do you want your bank accounts and assets to be frozen? No one will have access to your bank accounts until the proper legal documents are issued by the courts to establish a personal representative. In the mean time, your loved ones may be in need of funds for housing, food and day to day expenses. Think of the impact that this situation will have on your loved ones.
3) Do you want your loved ones to have to pay the expense of dealing with the courts to apply a Certificate of Estate Trustee without a Will? The fee for a lawyer to prepare a will is much less than the fee to apply to the courts for this appointment. This Certificate is the legal document that appoints a representative to distribute your estate assets.
4) Do you want the courts appointing a guardian of your minor children? Perhaps there are people whom you don’t want raising your children who indeed may be appointed by the courts if not otherwise directed. Consider that the appointed guardian of your minor children may be someone other than the appointed guardian of property for the children. Not only that, but accessing funds for the benefit of your minor children may mean applying to the courts each time funds are needed.
5) Do you want the law (the Ontario Succession Law Reform Act) to dictate who will be beneficiaries of your estate? Perhaps there are people whom you don’t want to inherit any part of your estate but who legally qualify for part of the estate when there is no will. Worse yet, perhaps the people whom you want to inherit your estate will not qualify for a cent! This could be the case with common-law spouses in Ontario.
6) Are you in a common-law relationship? If so, the Ontario Succession Law Reform Act does not apply to your common-law partner if you pass away without a will. You can access the Ontario Succession Law Reform Act online to see the chain of family members entitled to your estate.
I can’t stress enough how important it is to think about the future of your loved ones and the impact your passing would have on them from a financial perspective. You are never too young, nor is any expense too great when it comes to making certain that your loved ones will be taken care of.
Side Notes: I am not a lawyer and therefore, none of my advice should be taken as “legal advice”. This blog is meant to have you seriously consider your personal circumstances should you pass away without a will, and to motivate you to get this legal document drawn up sooner rather than later. I recommend you consult a lawyer to prepare your will to ensure it covers all legal aspects of your financial and family circumstances.
Written by Betty Anne Flynn