A will allows one to decide upon one’s death “who” gets “what assets”, “when”, and “who” looks after the estate and any trusts. A will may also allow one to state his or her preference as to who should have custody of one’s child, though it is not binding on the Court. One may also express his or her wish as to how he or she wishes to be buried, but this is not binding upon the executor.
Without a will, all of those decisions are governed by Ontario’s Succession Law Reform Act. The main reason for having a will is therefore to allow one to make these decisions rather than letting the government’s statute dictate them. Moreover, without a will there may also be administrative problems, extra expenses and possible lawsuits by dependents or spouses who did not inherit as much of the estate as they would have under the dependant relief provisions of the Succession Law Reform Act or on equalization of assets claimed under the Family Law Act.
Often what the Succession Law Reform Act dictates is not what you would have wanted or what is best for the estate and the beneficiaries (persons who inherit the estate). This article will explore briefly the main decisions that are expressed in a will, what decisions are made by the Succession Law Reform Act in the absence of a will, and why the latter decisions may not be the best in many circumstances.
The Succession Law Reform Act Part II states who gets what portion of the estate if there is no will. Contrary to popular belief, it does not all necessarily go to one’s spouse. When there are children involved, the spouse receives the first $200,000.00 and the remainder is divided among the spouse and the children in proportions that depend on the number of children. If one dies without a spouse and without children or grandchildren, the parents are the beneficiaries. In this latter instance, which might occur because of an accident involving the whole family, one’s wishes should be expressed in a will as most often a person desires that other relatives, such as brothers and sisters become the beneficiaries as well as the parents.
If one dies without a will, the assets are usually all sold and the beneficiaries obtain their share of the estate in cash. A will allows one to designate specific assets to certain people.
It is in the case of child beneficiaries that a will is most necessary. Without a will naming a trustee to look after the children’s money until they are a certain age, the Official Guardian’s office in Toronto becomes the trustee. The Official Guardian as trustee must give the children their share outright at age eighteen. Some people do not feel that a child is sufficiently responsible at age 18 to manage a large amount of money (and with today’s death benefits and insurance policies, it could be a large sum). By having a will, a parent can decide at what age the child can take control of his or her bequest such as at age 21, 23, 25 or even 30. Until that time, the trustee of a will still has flexibility to give the child capital from his bequest if he or she really needs it. The Official Guardian is a bureaucrat who does not have as much time to monitor personally the needs of the child and therefore there may be a time lag between requesting money and receiving it. Also, an appointed trustee may do better than the Official Guardian at investing the money. The Official Guardian will almost always turn all the assets into cash and invest them at the going interest rate. It may be that certain assets such as rental accommodations should be retained as the rate of return may be better.
A person by a will decides who administers the estate. The court, if there is no will, would appoint an “Estate Trustee”, a person or persons who are usually the closest relatives to the person who died. The person or persons appointed may not be the people one would have chosen. In a will, one might have appointed the most responsible child or a friend but the court, if there is no will, might appoint another person. By his will, a person can and usually does give more powers to the estate trustee (formerly called the executor) than the law does to a court appointed trustee. This may be important if the assets need to be managed (such as rental property or a business) rather than sold.
The Children’s Law Reform Act now allows one to appoint by will the custodian of one’s minor children. This appointment is only valid for ninety days from the date of death, but an appointment can be of great benefit as upon the death of a parent, for the initial ninety day period, there would be no argument as to who should look after the children, as the decision will have been made. It will reduce greatly the emotional stress among the relatives and children if they do not have to argue and discuss where the children should reside. The final decision as to the custodian which will be made by the court will be easier, and probably less contested if the will states the parent’s preference.
One’s wishes as to his or her mode of burial is often expressed in one’s will, though legally the wishes are not binding on the executor. If one is eccentric and wants his or her ashes spread over the North Pole or wants a great party at his or her funeral, one should carefully choose an executor who will carry out these wishes.
Even if the Succession Law Reform Act provides the same beneficiaries, age of distribution, estate trustee and the court appoints the custodian that one would have chosen, there may be extra administration costs when one dies without a will especially in smaller estates. In a small estate, banks and other institutions will give the executor money or assets in their possession upon obtaining a copy of the will. They will not make an executor go to the expense of probating the will (probate is a court application to prove the will). However, if there is no will, a bank or institution would most likely require that the person administering the estate apply to the court for a Certificate of Appointment of Estate Trustee which even in small estates is costly. A will takes effect on death and even before the will is probated by the court. The executor therefore can deal and manage the assets right away if that is necessary such as in order to run a small business. However, an administrator has no authority until the court appoints him. This time delay can cause problems if there are decisions that must be made immediately.
The making of a will is the appropriate time to put one’s financial affairs in order and explore all aspects of estate planning. An important element of that estate planning would be to ensure that probate fees are minimized. Through estate planning, one might discover that more life insurance is needed to properly take care of loved ones, keeping in mind that substantial taxes may be payable at the time of death which may erode the value of the estate’s assets. If assets are not liquid, life insurance proceeds may also assist the family until the estate has been administered. It may also be the time one gives both a Continuing Power of Attorney for Property and a Personal Care Power of Attorney to one’s spouse in case of illness or incompetence. The Family Law Act allows a spouse to sue an estate for an equalization of assets as though the couple separated. This possibility along with the possibility of dependent spouses or children pursuant to the Succession Law Reform Act suing the estate must be taken into account when drafting the will. Besides careful drafting of the will to deal with the problem, it might necessitate a marriage contract to obtain the objectives desired.
Everyone’s situation is unique and may be more or less complicated than the examples given in this article. It is suggested that you seek a lawyer’s advice to discuss your own personal situation.