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Last Will and testament document

Wills and Estates Series – Part 1 

As the old adage goes, there are only two certainties in life: death and taxes. As we age, we inevitably wonder what will happen to the assets that we have accumulated over our lifetime. The answer, as always, is “it depends.”

The area of Wills and Estates is complicated and can often seem overwhelming. This “Wills and Estates” blog series will unpack what “it depends” actually means, shine a light on the law of succession in the province of Ontario and attempt to answer a number of frequently asked questions related to wills and estate planning.

To begin, we will start with the most common question: Do I really need a will?

Generally speaking, the single best reason to have a properly drafted will is control. By having a properly drafted will, you can direct what will happen with your assets (subject to taxes). If you do not have a valid will at the time of your passing, you have died “intestate” and your estate is then subject to the intestate distribution provisions of the Succession Law Reform Act. The statutory scheme follows the degrees of consanguinity, and can be best explained by referring to the following table:

Survivor Distribution
If a spouse All to the spouse
If a spouse and one child Preferential share ($200,000) to the spouse, remainder split equally between the spouse and child
If a spouse and two or more children Preferential share to the spouse plus one third of the remainder, with the remaining two thirds divided among the children
None of the above and a parent survives Parents surviving share equally
Other next of kin Distribution as per degree of consanguinity
None of the above Escheat to the Crown

For some, the statutory distribution is fine. For many, however, this distribution scheme is overcomplicated or undesirable.

A further concern is the role of the Estate Trustee, who will manage and administer your estate. If you have a valid will, you are able to appoint this person. It can be anyone you like, provided they are at least the age of majority. It is also generally preferable that the appointee be a resident of the provincial jurisdiction in which you passed – for the purposes of this analysis that would be Ontario. If you do not have a will, someone will have to apply to be appointed as your estate trustee. This would most likely be a member of your immediate family, but this issue has the potential to cause disagreement and uncertainty amongst your loved ones.

Finally, further issues that can also be addressed through a will include appointing a guardian for minor children, determining the age at which certain beneficiaries will be entitled to their gift through the creation of a testamentary trust, and even appointing someone to care for your pets, setting aside money for their care. Without a will, none of these issues would be addressed.

It is important to note that this is by no means an exhaustive analysis, and there are many, more complex benefits that come from having a valid will.

We encourage you to seek out fulsome and individually tailored advice to assist you with your estate planning. A properly drafted will takes into account your personal circumstances, assets and needs.

If you have any questions about the issues raised in this blog, or about will and estates in general, please feel free to contact me directly.

Bradley D. Samuel

Associate with Corporate/ Commercial and Estates Departments

Disclaimer: This article is provided as an information resource. This article should not be relied upon to make decisions and is not intended to replace advice from a qualified legal professional. In all cases, contact your legal professional for advice on any matter referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship. Please note that this information is current only to the date of posting. The law is constantly changing and always evolving.

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