Having a will in place gives your surviving relatives some much needed certainty during a period of emotional and financial volatility.
The Canadian Press recently reported that more than half of Canadians do not have a will. Should the worst happen to them, those people could be leaving their loved ones in a very precarious position at the worst possible time: family and friends will already have enough on their plate without the added stress of an intestacy to contend with.
When someone dies without a will in Ontario, the government effectively decides what will happen to their property – via the province’s Succession Law Reform Act, which sets strict rules for the distribution of assets.
Under the Act, the deceased’s surviving spouse gets the first $200,000 from any estate, with the remainder divided between the spouse and any surviving children. When there is just one child, the assets are split equally with the spouse.
If there is more than one child, then the spouse gets one-third of the amount over $200,000, and the remaining two-thirds are divided equally among all the children.
Common-law spouses can be left most exposed by the death of a partner, since the law offers no automatic entitlements to them – a fact that comes as a surprise to many.
Although the Canada Revenue Agency recognizes common-law relationships for tax purposes once the couple have been together 12 months – shorter if they have a child together – that’s not the case for estates law.
While a claim in court for dependant’s relief is a possibility, that can be complex and costly. And if the deceased was previously married and never divorced, then the ex could stand to gain everything.
But even those who were married can be left in the lurch. If they were relying on a partner’s income to carry the mortgage or if the house was in the deceased’s name only, it could even put their ownership of the marital house in doubt.
Married spouses have the option to administer the estate using the Family Law Act by equalizing net family property, but the process is also a time-consuming and difficult one, especially if probate is required before anyone can access funds.
For those who are still in doubt about the value of an estate plan, I would add that a properly drafted will helps testators take control of their affairs by minimizing the tax their estate will pay, establishing funeral and burial wishes and choosing guardians for their minor children.
Disclaimer: The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Laredo Law (or their own legal counsel) regarding any specific legal issues.
