One of my most common questions as a lawyer is
“Do I really need a Will?” My answer is always yes.
In Ontario, if you die without a valid, complete Will, an intestacy is created, and the distribution of your estate will be governed entirely by the Succession Law Reform Act.
This law provides for a complicated mechanism of determining which of your family members will inherit specified portions of your Estate, depending on the amount you leave and the closeness of your relatives’ familial relationship to you.
Where there is an intestacy, a surviving spouse is entitled to a preferential share of the Estate – the first $200,000.00 in value. The residue thereafter is divided between the surviving spouse and surviving children.
If there is only one child, the spouse and child divide on a 50-50 basis. If there is more than one child, the spouse is entitled to one-third, and the remaining two-thirds is divided equally between the children.
If there is no spouse and no children, the estate will pass to a parent or parents. If no parents survive, the estate will pass to brothers or sisters of the deceased. Absent surviving siblings, the property of the estate will be distributed among the nephews and nieces of the intestate equally. If there are no surviving nephews and nieces, however, the ranking “next of kin” as defined in the Act are entitled to share in the Estate.
When a Will is in place, your estate will be distributed as you would like, once the funeral and burial expenses and any other debts have been paid. I recommend that you discuss your wishes with your family members. Who gets those precious heirlooms. It’s not always about the monetary value but sometimes the sentiment of an object may be so important to a family member or close friend. Adding who gets what to a Will can help with the distribution after your passing.
“Do I really need a Will?”
Was your Will written before 1986? Then it’s time to talk to us.
The Ontario Family Law Act came into force in 1986. It allows a person making a Will to specifically declare and provide that a gift under the Will is not to be considered part of the ‘net family property’ of the beneficiary if that beneficiary undergoes a matrimonial separation or divorce.
Prior to 1986, the family property was treated differently in martial separations, and such a provision in a Will was not required or generally, contemplated.
Today, unless a Will contains an explicit provision excluding the inherited property from the beneficiary’s net family property, his or her spouse could be entitled to a divided share of the inheritance and income from the inheritance.
Wills completed before 1986 do not typically have such a provision, and should be updated accordingly.
Wills should be reviewed from time to time. As your financial and family situations can change over the years and with new laws in place we want to ensure that your intentions are always upheld.
Having a proper Will in place can help your loved ones to deal with one less issue after your passing. Please call us for a review of your current Will or setting up a new Will.
At Goldstein, Rosen & Rassos we are here to help you.
by Jeffrey Muller, B.Sc., MA, LL.B.