Wills
A Last Will and Testament, is a legal document that outlines and sets forth your wishes regarding the distribution of assets, property and the care of minor children (if you have any). To finalize and officiate these wishes, you should have a lawyer prepare your will.
When you create a will, you have sole discretion over any and all assets that you choose to distribute in the event of your death. This includes your personal belongings, family heirlooms, vehicles, and properties. Also, if you are a business owner, a will can allow for a smooth transition of your business to a new owner whether inside or outside the family. Family businesses are a huge source of litigation and these fights can be reduced if not eliminated by having a detailed will.
Are Wills Really That Important?
Your family and loved ones are the most important part of your life. In order to make sure that they are protected, and that your estate is properly divided among them, wills are crucial. There are so many factors that you may not realize that can change the outcome of an estate in a flash.
Ultimately, it is one of – if not – the most important documents you can have. So yes, it is very important. There are a seemingly endless list of issues that can arise within your estate, and among your loved ones if you do not have a will when you pass.
For example, without a will, your death will be intestate. In Ontario, this means that your estate will be subject to statutory provisions to dictate who will be inheriting your estate. This puts any distribution that you may have had in mind to a complete halt. Through this formula, it can often result in undesirable results.
If you are a business owner, a corporate will can allow you to keep your business assets separate from your personal ones and will not force it to go through probate. Meaning that the corporate will holding your business ownership will not go through probate and not be subject to the administrative tax (probate fee).
Areas of issues when dying without a will
If you simply want to leave everything to your married partner, and you have no children, then without a will your legally married partner has the right to your estate. However, if you and your partner are unmarried or in a common law relationship then your partner does not have the same right.
Of course, this can cause many issues for your significant other. Without a legal marriage, they are not allotted any automatic benefits if you are to pass without a will. In Ontario, a common law, or unmarried partner is not considered to be a next of kin under the province’s Succession Law Reform Act.
If you die without being married, the act outlines a list in which your estate will be distributed. Under the act, if you’re not married, your estate will:
Go to your children
If you have no children, then your next of kin would be your surviving parents
If none, then your siblings
Or, if they are no longer alive, then it will be divided among nieces and nephews
Nowhere in this list does it consider a partner or common-law spouse to receive any part of your estate.
What about your children?
This is another factor that is overlooked, and one that creates many issues in your surviving family. While the children will still receive significant portions of your estate without a will, it will not necessarily be divided how you, or they, expected it to be.
This can cause arguments or differences between your children regarding certain assets in your estate. A large reason behind this is the sentimental attachments to property or heirlooms. While there may be an “equal” division of your assets, your children may not see it that way if there was a sentimental connection to a property, or one child wanted an heirloom to pass on to further generations.
If these differences cannot be solved, and the children cannot come to a conclusive division of assets then the articles of the estate are forced into sale and division of the estate will just become one of finances.
Things to keep in mind
Having a will is crucial if you want to ensure that your loved ones are protected, your possessions are distributed how you want them to be and even that the shares and assets of your business are protected and transitioned properly. While Ontario may have some statutes and provisions set in place to divide your estate after your death, it surely won’t be divided the way you would have wanted.
Do I really need a Last Will and Testament?
YES! Here are my top 5 reasons why you need a Last Will and Testament
Common law spouses do not have property rights and they will inherit property under the laws in Ontario. Your estate would go to your closest living relative and completely bypass your common law spouse.
If you have children, your legally married spouse will not inherit everything. Your spouse will only inherit the first $200,000 of your estate and then would equally share the remainder with your children.
If a minor child inherits more than $10,000, the surviving parent will have to apply to the Office Public Guardian Trustee and ask permission to become the Guardian over the money. A parent is not an automatic Guardian of your child’s money.
A proposed Estate Trustee or Guardian may be required to post a bond with their application. Posting bond could be as high as three times the worth of the estate.
You can reduce tax exposure. By reviewing your assets with a lawyer, we can identify issues you may not think about on your own. There are planning tools such as double wills, beneficiary designation forms, family trusts, capital gain planning, and joint tenancy just to name a few.
What happens if I die without a Last Will and Testament?
The Ontario Succession Law Reform Act takes over and dictates who will be the beneficiary of your estate. If you are legally married with children, your spouse will not receive your entire estate! If your children are minors, the Office of Public Guardian gets involved too. A surviving parent is not the guardian of your child’s money. If you are a common law spouse, you will have no automatic inheritance and will be limited to making a claim against the estate as a dependent or under a constructive trust claim.
What is a Last Will and Testament?
A Law Will and Testament is a legal document that appoints who will be in charge of your estate and what your final wishes are in regards to the distribution of your assets upon your death. Your wishes are outlined in a document which will outline, among other things, who will be the beneficiaries of your estate (all your assets both real and personal) and how the distribution of your estate will go. You can also provide for who will become the guardian and custodian of your minor children, create trusts for minor or disabled children and even provide specific gifts.
Just how important is a will?
Studies and surveys over the last several years consistently indicate that more than half of all Canadians do not have a last will and testament. The importance of a will is something that is often overlooked, as people think “I don’t have enough” or “I only need a simple Will.” But, you don’t know what you don’t know! Your will is one of the most important legal documents that you can have. There are a numerous issues that can arise within your estate, and among your loved ones if you do not have a will when you pass. For example, without a will, your death will be “intestate”. In Ontario, this means that your estate will be subject to statutory provisions to determine who will be inheriting your estate. This, of course, goes against your personal wishes, and can also add several issues to an already overwhelming situation. For example, if you have a legally married spouse and children, your spouse will not get it all.
How dying without a will may affect your common-law spouse and family
If you and your partner are unmarried or common law, you may inadvertently leave them out of your estate. Your common law spouse does not have the same entitlements as a legally married spouse. In Ontario, the Succession Law Reform Act does not include common law partners in the definition of spouse and therefore is not considered to be a next of kin under the Act. If you die without being legally married, the act dictates a hierarchy in which your estate will be distributed. Under the act, if you’re not legally married, your estate will:
Go to your children
If you have no children, then your next of kin would be your surviving parents
If none, then your siblings
Or if they are no longer alive, then it will be divided among nieces and nephews, etc.
Nowhere in this list does it consider a partner or common-law spouse to receive any part of your estate.
What Is A Corporate Will?
A corporate will (also known as secondary will) is a special tool for estate planning with respect to your business interest in a privately held company. A large driving factor for having a second will is to avoid the probate requirement and therefore the estate administration tax.
As an example, if you are a business owner, you can have two separate wills. One will would deal with personal assets and the other would deal with your corporate shares. Your personal will may need to be probated, while the corporate secondary will is designed specifically to avoid probate. This will allow you to transfer the shares legally to a new owner or to the beneficiary without being subject to the administrative tax (probate tax) which is calculated based on the fair market value of those shares at the time of death.
Typically, one person would have one Last Will and Testament that handles all aspects of their estate. But the Ontario Supreme Court changed this idea with the ruling in Granovsky Estate v. Ontario. In this case, the court accepted the concept that a person could have two Wills; one Will that pays the administration tax and goes through probate and a second Will that does not go through probate and avoids the administration tax. This created the Primary and Secondary Will concept. Imagine two buckets: One bucket holds all your personal items such as your bank accounts, real estate and personal belongings, and the second bucket only holds your corporation ownership. By separating these assets, only the assets in your primary Will would go through probate and be subject to the administration tax (probate fee). The secondary will that only holds your business ownership will not go through probate and will avoid the administration tax.
What is a Power of Attorney?
A Power of Attorney is a legal document that appoints a specific person to “step into your shoes” and act on your behalf, if you are unable. A General Power of Attorney can only be used while you are mentally capable. A Continuing Power of Attorney means that it can be used even if you are mentally incapacitated. Power of Attorney can be for general or unlimited use, or specific for a one-time special purpose, such as selling a piece of property. Power of Attorney can become effective either immediately or upon a contingent event such as your doctor declaring you mentally incapable.
Do I need two Power of Attorney?
We recommend that you have a Power of Attorney for Property (assets) and a separate Power of Attorney for Personal Care. Sometimes, the person who is best suited to be your Power of Attorney for Property is not the same person who is best suited to make your medical decisions. Further, upon the event a POA is required by a bank the entire document would be revealed and now the bank is privy to your personal end of life decisions.
Can a Power of Attorney be used after death?
No. A Power of Attorney is no longer valid after you die. When someone dies, the Last Will and Testament is the document that takes over.
Is a Power of Attorney the same thing as an Executor?
A: No. A Power of Attorney is someone you appoint to act on your behalf while you are alive but are unavailable or incapacitated. An Executor is someone who is in charge of your Last Will and Testament and estate after you die.
I think someone is abusing a Power of Attorney. What do I do?
Power of Attorney have a fiduciary duty to act in the best interest of the person who granted the power. Power of Attorney for Property are required to keep accounting and can be held accountable for improper spending, gifting, or transfers. If you believe someone is abusing a Power of Attorney you can initiate an investigation with the Office of Public Guardian and Trustee.
What do I do if my parent is mentally incapable and there is no Power of Attorney?
If there is no Power of Attorney in place, under the Ontario Substitute Decisions Act, the Office of Public Guardian and Trustee becomes the Statutory Power of Attorney. Families can work with the OPGT and apply for the Power of Attorney to be transferred.
Can you appoint an Executor who does not live here?
Yes, you can but this decision needs to be carefully thought out and reviewed with an estates lawyer. If you name an executor who does not live here in Ontario, you must specifically write in your will that the appointment is without bond. Otherwise, a nonresident would be required to post security (bond) which can be worth up to three times the value of the estate. This is an expensive and time-consuming process. Even with this language to waive the bond requirement, it still may not be binding to a judge if for any reason the judge is not satisfied. We therefore always recommend that if you do name a nonresident as an executor, it would be wise to name an alternative person or professional who lives in Ontario. This would allow the foreign executor the option of renouncing, or stepping down, upon the event that a bond issue arises.
