People call us every day with questions about wills. We thought it would be helpful to interview our Wills and Estates lawyer, Bethany Anderson, so that she can provide the answers to some of these questions. Here are Bethany’s answers:
Do I need a Will?
“The most general (and obvious) two reasons to have a Will are that it allows you to a) decide who will be responsible for administering your estate (your “Estate Trustee”) and b) determine who will receive the assets of your estate and in what proportions/quantities.
A Will also allows you to create trusts for minor children, directing the age at which they will receive assets outright, and allowing for discretionary payments and/or milestone payments of income and capital along the way.
If you are providing for disabled beneficiaries, you can create a trust that will allow your beneficiary to maintain eligibility for government support payments and other ancillary benefits.
Basically, a properly drafted (and thought out) Will allows you to be flexible, and ensure your wishes are carried out.”
What happens if I die without a Will?
“In Ontario, if you do not have a Will, the Succession Law Reform Act (“SLRA”) governs what happens to your estate. The intestacy provisions of the SLRA do not reflect everyone’s wishes, and many people are surprised when they learn how those SLRA provisions work. For instance, a common assumption is that if a person is married (and has children) “everything will go to my spouse anyway.” This may or may not be true, depending upon your circumstances, value of your assets the way your assets are held during your lifetime. Under the SLRA, your surviving spouse (provided you are married) would receive the “preferential share” of your estate ($200,000.00), after which, he or she would share the remainder of your estate with your children.
If your children are minors (under 18 in Ontario), without a Will, there are no trust provisions established. Minors are not entitled to receive assets outright, so often the Office of the Children’s Lawyer becomes involved. Further, if you and your spouse are in a common law relationship and you have children together, your spouse does not automatically have the same property rights under the SLRA as they would if you were married, and unless a dependent’s support claim is possible, your children may be entitled to all of your estate.
The SLRA provides for distribution amongst next of kin – if you wish to make gifts to friends or charities, this won’t happen unless you have a Will creating these gifts.
Without a Will, you do not have a choice in who will act as your executor/estate trustee. Someone will need to make an application to the Court for a Certificate of Appointment of Estate Trustee Without a Will.”
My situation is very simple…Can’t I just get one of those less expensive Will Kits online? Do I really need a fancy estate planning lawyer?
(We note Bethany has a lot to say about this!)
“Estate planning is a process, not just a document or a set of documents. In many ways, you really do get what you pay for. Everyone thinks of themselves as “simple” or “straightforward”, but if you are not aware of issues that might impact your estate, then you can’t consider them.
A lawyer who is well versed in estate planning will discuss your personal and financial circumstances with you. They will talk to you about your goals, possible outcomes, contingencies, and how your plan may be impacted by the way you hold your assets. They will be able to raise issues for you with respect to taxation (and may wish to work alongside your accountant in some cases), family law issues, etc. They should be able to offer you options and advise you of risks that you may decide to accept or attempt to avoid.
The Will you prepare with an estate planning lawyer might appear “simple” or more complex, but it is very important to consider these issues as part of the process. There is a lot more thought required for a proper Will (or estate plan) than just inserting names on a sheet of paper.
A Will kit is an inexpensive tool that allows you to prepare your own Will. The price tag can be attractive, as can the simple availability online or in stationary stores. I am often asked “if I do a Will myself, will it be valid?” That is not an easy question to answer.
With a Will kit, a person might end up with a Will that is technically valid (if it has been drafted and signed correctly) and that works for them. However, if it is not executed properly, it will not have met the technical requirements of a Will. If it is “valid”, an even more important question is “does it do what you want it to do?”. If you have done it yourself, you have not received advice from a lawyer, and will probably not have considered various contingencies.
The language used in Will kits can be successful/correct or not – it really depends. Many Will kits are missing clauses relating to things other than the distribution of assets. When incorrect language is used, the person using the Will kit may not notice or understand the impact. In some instances, the effect of using the wrong word (one common example, the use of “children” instead of “issue” in an important context) the effect may be that the Will is interpreted in the exact opposite manner than the testator intended.
These are just some of the risks. Wills from Will kits are also often lacking in provisions dealing with the powers of the estate trustees, compensation, and other “standard” Trustee provisions used by lawyers that are carefully crafted and included to prevent litigation and to ensure that Trustees have the toolkit they may need under the circumstances. It can be a trade off: an initially low cost (the price of the kit) vs the risk of possible headaches and litigation costs (or wishes not being fulfilled) after your death.”
Bethany Anderson practices Wills and Estates law at Berry Gage LLP. You can read more about her and contact her with your own questions by clicking this link: http://www.bgfamilylaw.ca/bio-ba.html
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