Where There’s A Legal Will There’s A Way—Your Way

By Jan Jaluvka

Most people prefer not to think of death. Perhaps this explains why they also prefer not to think about making a legal will, or last will and testament, since by doing so they must confront and deal with the prospect of their own demise.

This aversion to thinking such “dark thoughts” gives rise to some groundless and potentially dangerous excuses and rationalizations for not making a will. Even when gently nudged by a spouse or close family member, objections like the following are raised: “I’m still young and healthy. I’ve got lots of time before I need to make a will.” or, “You’re just after my money. Otherwise you wouldn’t be pestering me about it.” or, ”We don’t have much to leave. Besides, wills are for wealthy people, not people like us.” or, “Making a legal will costs too much. It isn’t worth paying a lawyer to do it.”

Sadly, such reasons for not making a will ignore the following fundamental reality:
All adult persons residing in Ontario who own property or assets of any kind should have a properly drawn legal will, especially if they have children.

Under the laws of Ontario, if you die without a legal will, your estate will be divided according to a set procedure based upon family relationship. If you die leaving a spouse and no children, your spouse receives the entire estate. If you leave a spouse and children, your spouse is entitled to receive a preferential share equal to first $200,000 worth of assets after any debts and liabilities of the estate are paid. Any excess over $200,000 is divided between your spouse and your children according to a predetermined code of distribution. If you die leaving children and no spouse, the estate is divided equally among the children. If you leave no spouse and no children, then the estate passes to your next-of-kin then living, according to a predetermined code of distribution. Ultimately, if no living next-of-kin can be found, your estate will go to the Government of Ontario.

As you can see, if you fail to make a will, the above code of estate distribution saddles you with an arbitrary, inflexible, one-size-fits-all scheme. It also leaves you and your own personal wishes and preferences concerning your estate, out of the picture.

Dying without a will can create completely unintended and potentially disastrous consequences. Imagine yourself as a loving husband and father with a wife and four young children all under nine years of age. You have been the sole earner of your family’s income while your wife has remained at home raising the children. You have also amassed the bulk of the family assets including the $200,000 family home registered in your own name. In this situation, if you were to die without a will, the good news is, your wife would receive the first $200,000 worth of your estate and, in doing so, she might choose to keep the family home. The bad news is, your wife would receive only one third of the balance of the estate, while the remaining two thirds must be sold and set aside in trust for the children until they become 18 years old.

Your failure to make a will has left your family financially crippled. Where will your wife find the money to keep the family and household going? Having been out of the workforce, will she be able to find a job paying enough to enable her to make ends meet? Who will look after the children while your wife is at work?

With a properly drawn legal will you could have spared your wife and family these difficulties and hardships. With a will you could have left your entire estate to your wife (as most spouses do). By doing so, you would have left your wife in a much better position to provide for herself and the needs of your young family.

When you have a will, you control how your estate will be dealt with after your death. You decide how your estate will to be divided or, “who gets what.” A will allows you to spell out in clear detail to whom and in what proportion(s) you will leave your property and other assets. Real estate, investments, bank accounts, RRSP’s, household items—everything you own can be dealt with in your will. A will also allows you to personally select the person or persons you want to handle the winding up of your affairs and the distribution of your estate according to your wishes.

A will affords you the opportunity to make specific provision for the needs of a surviving spouse and for the care, upbringing and education of surviving children, as the case may be. A will further permits you to appoint a guardian to look after any children you may have under eighteen years of age. A will can also assist you in tax planning to reduce the amount of income tax that would otherwise be payable from your estate on your death.

Where there’s a legal will there’s a way--your way, not the government’s.

Consult an experienced wills and estates lawyer who can advise you in these matters and prepare a will for you in accordance with your particular wishes and concerns.

For other legal articles dealing with this area of law see the following: Power Of Attorney in Ontario

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