What is a Will?
A Will is a document that contains all of your wishes regarding what you would like to happen to your estate upon your death. In this document, you will appoint an Executor who will see that your wishes regarding your estate are fulfilled after you die. Your Will also identifies your beneficiaries and explains how they will share in your estate.
Why have a Will?
The one major advantage of drafting a Will is that it will give you full and complete control over your estate—allowing you to decide who will get a share and, more importantly, who won’t.
The other advantage, especially for those with minor children, is that a Will allows you to look after their future needs in two ways. Firstly, you can set up a Trust under your Will which could allow your Executor to hold the minor child’s share of the inheritance in trust until the child reaches a certain age of maturity. This trust can also give the Executor the discretion to use the trust monies from time to time for the child’s education and any other major expenses. Secondly, and more importantly, the Will allows you to designate someone as a Guardian of the minor children. This designation helps safeguard your wishes in the case of a possible court challenge by someone who may want control of your children and their inheritance.
What happens if you die without a Will?
If you die without having made a Will, (also referred to as dying “intestate”), provincial legislation called the Succession Law Reform Act will dictate how your estate is to be divided. Upon your death, your spouse or a next of kin would first have to apply to the courts to be appointed as the “Administrator” of your estate. (This alone could be a fairly expensive and time-consuming process). This person would have the same role as an Executor would under a Will—in that he or she would be in charge of managing and dividing up the estate—however, in an intestacy, the Administrator would be legally obligated to follow the Provincial guidelines as to how your estate would be divided. Thus, according to the legislation, the following would take place:
- The spouse of the deceased would be entitled to a “Preferential Share” of the first Seventy Five Thousand Dollars ($75,000) of the estate. If the net value of the estate is less than the preferential share, the entire estate would pass to the surviving spouse, regardless of whether or not there were surviving children.
- If the net value of the estate is greater than the preferential share, the preferential share passes to the spouse (the first $75,000), and the spouse gets one-half of the remaining estate, IF there is only one child, and this one child gets the other one-half.
- If, however, there are more than one child surviving, then, after the preferential share, the spouse is entitled to one-third of the remaining balance, with the remaining two-third balance to be divided equally among the surviving children.
- If there is no spouse and no children surviving the deceased, then the parents of the deceased will receive the entire estate equally or the survivor of them.
- If there is no spouse, no children and no parents surviving, the estate will pass equally among the siblings of the deceased.
- In a situation where there is no spouse, no children, no parents or brothers or sisters surviving, the estate would pass to all of the nephews and nieces who will share equally.
- If none of the above are surviving, then the legislation states that the next-of-kin of equal degree will share in the estate, as set out in the table of “Consanguinity” meaning, of the same blood. So, relationship by descent, either lineally, as in the case of parent and child, or collaterally, by descent from common ancestor, as in the case of cousins who are descended from a common grandparent, would share equally.
- Finally, when there are no next-of-kin, the estate reverts to the Crown and becomes the property of the Crown.
So, you can see immediately the benefits of having a Will. Instead of letting the government and the courts decide who gets your estate and how much of it, you can control the entire process by simply outlining it in your Will.
It is possible to make a valid holograph Will in Ontario. This Will must be wholly in the handwriting of the person making the Will (the testator) and signed by him or her. It is important to note that a stationer’s form will not be considered a valid holograph Will – so, for those of you who may want to use “do it yourself” kits to write up your Wills, you must be extremely careful that the Will would be considered valid.