A Will is a legal document that sets out a person’s directions and wishes as to the management and distribution of property to designated beneficiaries. An Estate describes the property and debts left by a person after his or her death.
In a Will, an Estate Trustee is named to be appointed upon the person’s passing. An Estate Trustee is the person who pays all of the just debts of the Estate, gathers all of the property of the Estate, and ultimately distributes the property to the beneficiaries according to the Will. A Will also sets out the class of beneficiaries and the nature of each beneficiaries’ interest. If you have children under the age of majority, it is critical that you add a Guardianship clause in your Will. A Guardianship clause designates a legal guardian for under age children in the event the child’s parent passes away.
Without a Will, a person’s property will be distributed pursuant to the Succession Law Reform Act, R.S.O. 1990, c. S. 26 under the intestacy laws.
It is crucial for a person to have a Will to ensure there are not unnecessary complications with the administration of his or her Estate. For example, suppose a married spouse passes away without a Will leaving a surviving spouse and 1 child. In this instance, under the intestacy laws, there will be a portion of the deceased’s spouse’s property that vests to the child. If there is no Will, there is no Estate Trustee named which means, in this example, the Office of the Children’s Lawyer has jurisdiction over the child’s property. In this example, there is unnecessary cost and complication in what otherwise should have been a simple Estate. Having a valid Last Will and Testament can avoid the above noted complications.
If you are living in a common law relationship, it is crucial to have a Will. Suppose two people have resided together for 30 years and they have 2 children. Further suppose that they are not
married. If one of the common law partners passes away, the surviving partner will not inherit any property of the deceased under the applicable intestacy laws. This is because for purposes of the testacy and intestacy laws, a “spouse” includes a married spouse and does not include unmarried persons. This means, if you are living in a common law relationship, it is critical that you have a Will to ensure your partner is taken care of in the event of your passing. It is important to note that, in the above example, a common law partner could commence what is called a Dependent Support Claim for financial relief against the Estate of their deceased partner (please see the section on “Dependent Support Claims”).
In summary, a Will is a very effective planning tool that should not be thought of as optional. A properly drafted Will ensures that your affairs are in order and minimizes the degree of complication of your Estate.
We are here to answer all of your Wills and Estates questions. Before completing your Will, we will discuss with you aspects of Estate Planning to ensure that your affairs are in order.
Please contact us with your Wills and Estates questions.