What if I do not have a will? If I live in Ontario and die without a valid will, I won’t be able to:
- Decide who my Estate Trustee (also known as “Executor”) will be. (The Estate Trustee is the person who administers my estate.)
- Have someone from outside of Ontario appointed as my Estate Trustee (even if that person would be the best qualified to act).
- Have anyone do anything with my estate – including safeguarding my assets and paying my bills – until a Court Order has been obtained appointing someone as my Estate Trustee. This will take time and cost money – more than the cost of having a will done.
- Designate who has control over my funeral arrangements (in the event that there is a conflict among my family).
- Decide who receives my estate. In fact, certain family members and other relatives may receive a greater share of my estate than what I would have given them in my will.
- Leave all of my estate to my legal spouse (if I have at least one child – regardless of age) – unless my estate is less than $ 350,000.
- Leave any part of my estate to my common law spouse or to my same-sex partner. Only your legally married spouse can inherit any part of your estate if you die without a will.
- Provide a life interest for my legal spouse in any part of my estate.
- Designate who will receive some or all of my personal items, such as a piece of jewellery, some furniture, art work or my automobile.
- Designate my choice of guardian to look after any of my children who are under 18 years of age.
- Decide at what age my children or my grandchildren will receive their inheritance.
- Stop my children or my grandchildren from receiving the full amount of their inheritance when they reach 18 years of age (even if they are not able to wisely handle the money at that age).
- Allow my Estate Trustee (Executor) to pay additional money for the benefit of my child’s or grandchild’s education, medical or dental expenses before my child or grandchild reaches 18 years of age.
- Leave any part of my estate to any step-children that I may have.
- Determine the provisions of any trusts for my children.
- Set up a Henson Trust for any beneficiary who may be penalized by the government for receiving an inheritance from my estate or who is not able to wisely manage a large lump sum of money from my estate.
- Properly provide for a child or other beneficiary who has special needs.
- Fully protect my child’s inheritance from being used by my child’s separated spouse or my child’s creditors.
- Leave any of my money or property to a friend.
- Leave any of my money or property to a charity.
- Give my Estate Trustee (Executor) all of the powers that the Estate Trustee will need to properly administer my estate.
- Allow my Estate Trustee to reduce the amount of income tax that is payable upon my death.
- Reduce the amount of Probate Fees (also known as Probate Taxes) that my estate will have to pay to the government upon my death by having both a Probate Will and a Non-Probate Will if the nature of my assets allow for that.
- Do any other estate planning.
In addition, if I don’t have a will:
- It will be more expensive to administer my estate.
- There will be more paperwork to be completed to administer my estate. This will cost my estate additional money.
- An Application to Court will have to be made. (If there is a will, it may be possible to avoid having to go to Court.)
- The administration of my estate will be delayed until the Court Order is obtained.
- My Estate Trustee may have to pay to obtain a “bond” from an insurance company. This will cost my estate additional money.
- My estate will be administered and my assets distributed in accordance with the Ontario legislation in effect at the time of my death, regardless of whether I like it or not.
- The Ontario Government will look after my children’s or grandchildren’s inheritance until they become 18 years old.
- I may cause my Estate Trustee and Beneficiaries to spend more time in Court (which will cause delay and cost money).
- It will also likely take longer to complete the administration of my estate.
- In some cases, the Province of Ontario will become the beneficiary of my estate.
In other words, if I die without a will, I will lose control over what happens when I die. I will also cause my estate to incur costs which are far greater than the cost of making a will.
A well-drafted will can look after all of the above matters. With a will, I can have peace of mind knowing that my affairs are in order, my family is protected and my wishes will be carried out.
Someone once said, “A man [or a woman] who dies without a will has lawyers for his [or her] heirs!