Its estimated that more than half of Canadians do not have a will. This applies to many lawyers, too.
Why?
Well, many just dont like to think about it.
Or –
I cant find time to get around to it
I cant afford it right now
I dont really need one
Whatever the reason, your estate plan is very important.
Here are a few of what I consider the important reasons to have a Will.
With no Will:
– your Estate may be given to family members you do not wish to benefit (under Ontarios Succession Law Reform Act)
– your separated spouse may benefit from a share of your estate, which you may not intend
– if you have a common law spouse, they may not benefit from your estate, but that may not be your intention
– your step-children may not be entitled to any benefit from your estate, if you intend to give them a benefit
– if you have a spouse, that person may be entitled to $200,000 of your estate off the top (or the whole estate, if your estate is valued at less than $200,000), with anything more than this amount divided between your spouse and your children surviving you
– if you have no spouse or no children/grandchildren, etc., your estate may be divided between your remote family members/relatives, some of whom you may not even know
– your children may be entitled to receive their share at age 18, with no trust or other oversight of the money, such a a trust for them being set up to manage the money until you wish for them to have it
– if you have minor children, the money may have to be paid into Court, which is a costly, litigious experienced often
– you will not be able to appoint a guardian for your minor children (effective for 90 days if you do so in your Will), or express your wishes for who should care for your children, which is often considered by the Court if conflict arises
to ensure the right person is administering your estate, and that the administration occurs in a costeffective and timely manner.
– someone will have to hire a lawyer to apply to the Court to be given authority to administer your estate, which is often costly and time-consuming, until which time your estate will likely be frozen
– someone may apply for this authority who you do not want to be in charge of administering your estate
– your estate may have to pay more estate administration taxes to the Ontario government (1.5% on the value of your assets, generally) than if you plan your estate plan properly, leaving less for your intended beneficiaries
– if you have any foreign property, it can be complicated and costly to try to administer that if you have no Will, leaving less for your intended beneficiaries
– you may pay more taxes to the federal government than is necessary (you are deemed to dispose of your assets at fair market value on your death and there may be tax payable on your capital gains on your assets), but your Will can help you defer taxes on your death (example, property you give to your spouse on death may defer the tax payable into the future)
– most importantly, often passing away without a Will will increase the risk of litigation among your family members (and extensive fighting, lawyers fees and time in the Court system) a legacy you would likely prefer to avoid if you have a proper estate plan in place
– you lose control over your estate if you do not have a Will your estate may go to beneficiaries you did not intend
Having your estate plan done by a qualified lawyer is fairly inexpensive and, in my view, well worth the investment. If you do not have a Will, there is certainly a risk that you (through your estate) will pay far more ultimately to litigation lawyers if a dispute arises because you had not Will in place.
