Wills & Estate Law in Ontario - The Importance of Having a Will

1/19/2024

Your loved ones will be grateful for your decision to create a Will and begin your estate planning process. There is a significant importance for Ontario adults to have a valid Will to address several important decisions regarding their estate. A Will is a legal document that that is an individual’s last will and testament that outlines your wishes in the event you pass away. Your Will is a guide for your loved ones to follow in accordance with your wishes, and without this it can cause a strain and difficulty on your family members. To ensure you are adequately planning your estate and protecting your loved ones. It is essential to create a valid Will.

Many people put off completing this important legal document for few reasons. There are misconceptions about not having enough assets to make creating a Will worthwhile. Regardless of an estate size, having a valid Will is extremely important to handle all the affairs of distribution of assets as well as handling estate debt. Additionally, many others put it off and leave it on their to-do lists, to complete eventually. However, there are many reasons one should have a level of urgency in completing their Will. If you have minor children, you will want to ensure they are taken care of by the guardian of your choosing, if you are no longer here. Otherwise, the court is left with the decision on who to appoint as the guardian of your children. If you have special personal belongings and possessions that you wish to gift to loved ones, you are able to do so using your Will. Any monetary gifts you want to give friends and family members, or charitable gifts can also be drafted into your Will. Your wishes on how you want your property to be distributed, will be in your Will and your Estate Trustee that you appoint must follow these instructions.

What is a Valid Will in Ontario?

A valid Will in the province of Ontario must be signed by the person who is making it, as well as witnessed by two individuals who do not benefit or inherit under the Will. The person creating the Will is called the testator, and this individual must be over the age of majority in Ontario (age of 18), and of sound mind. Although there are many DIY Kits for Wills, many of these do it yourself solutions do not take into account estate planning needs of specific individuals, which can differ depending on the testator’s personal situation and assets. These do it yourself kits can seem easy and simple, however they can also cause significant harm to your estate and your heirs if done incorrectly without a lawyer’s assistance.

What it means if you die without a Will

If you die in Ontario without a Will, this is considered intestate. Because there is no will, there is also no Estate Trustee who can immediately deal with your property. An application needs to be made to appoint an Estate Trustee Without a Will. The probate process is lengthier, costly and under Ontario’s Succession Law Reform Act, your estate is disposed of using this statutory distribution. According to this statutory guideline, your estate goes to your spouse and children, however if you have no children, your next of kin is your parents. If your parents are no longer living, it is passed down to your siblings, and if they are no longer living, it goes to your nieces and nephews, and so forth. Eventually if you have no living next of kin, the property escheats to the Crown and your estate goes to the Ontario government. This priority is created based on the Table of Consanguinity, which looks at each level of kinship in your family tree. However, if you are unmarried and in a common law relationship, there is no statutory right for a common law partner to inherit from your estate. This can cause you to disinherit your common law spouse without intending to do so. Additionally, if you have minor children and do not have a Will that appoints a guardian, the court will decide who to appoint without your input. It is important that a decision as significant as who cares for your children in your absence, is made carefully by yourself. Creating a validly executed Will can avoid these issues by addressing your specific wishes in the document.

What it means if you die with a Will

If you die with a Will in Ontario, this is considered testate. As long as your Will is validly executed, the distribution of your estate follows in accordance with your wishes. You are also able to choose who manages your estate by appointing your Estate Trustee. Your Estate Trustee is given authority by your Will, to manage your estate, distribute and dispose of assets according to your wishes. Although your estate will still go through probate, the process is a lot speedier as your estate will be administered by your Estate Trustee. The distribution is also done in terms of priority, in the manner you as the testator decide. If you have minor children, your Will is where you can appoint a guardian to care for your children. This is an important decision for your children’s best interests, and it is critical to select someone you trust to fill this role. Additionally, by reviewing your estate with your lawyer when creating your Will, you can go over your assets and discuss tax implications of the distribution of these assets, and select the right planning tools that can help reduce taxes for your estate planning needs. By having a Will and an appointed Estate Trustee, your loved ones can be assured that your affairs will be handled during the administration of your estate, in accordance with your wishes.

Hiring a Lawyer

It is essential when creating your estate plan and your Will specifically, that you retain a lawyer that can adequately draft your personal wishes and needs.