Written By: Georgea Wolfe
Without a Will, the Succession Law Reform Act (Ontario) directs who will receive your estate and the amount which each of these people will receive. This is unlikely to conform to your actual wishes if you had given the matter some thought.
- The Succession Law Reform Act (Ontario) provides that if you have both a spouse and children, there is a preferential share of $200,000 set aside for the spouse. If there is only one child, the balance of the estate will then be divided equally between the spouse and the child. If there are several children, the balance of the estate will then be divided 1/3 to the spouse and 2/3 among the children.
- The term “spouse” under the Succession Law Reform Act (Ontario) only refers to your legal spouse.
- The age of the children is not relevant to the entitlement. The share set aside for the children is payable irrespective that they may be beyond the age of majority and irrespective that they may have no financial need for the money.
- The share payable to any minor children cannot be paid to them directly and must instead be paid into court. These monies will then subject to the control of the Office of the Public Guardian and Trustee.
Without a Will, you will be unable to make any specific gifts of money or property to your loved ones or to whomever you wish.
Without a Will, and if you have no next of kin, your estate will become the property of the Ontario government. With a Will, you can specify who will inherit your estate if you have no next of kin.
Without a Will, you cannot choose the estate trustees who will manage your estate. Instead, the court will determine your estate trustees based on Section 29(1) of the Estates Act (Ontario) and the court’s discretion.
Without a Will, there will be a time lag before anyone is appointed by the court with the authority to act as your estate trustee. With a Will, your named estate trustees can start managing your estate immediately, subject always to obtaining confirmation of appointment by the court under a Certificate of Appointment of Estate Trustee With a Will.
Without a Will, your estate trustees will likely have to post a bond with the court. The bond is required in order to protect the value of estate while the estate trustees are in the process of paying the debts of the estate and distributing the assets to the beneficiaries.
- The bond must be equal to double the value of the assets of the estate, which can be a financial hardship for the estate trustees.
- The bond is typically obtained from an insurer licensed to provide surety and fidelity insurance in Ontario and there is an annual fee payable for such a bond.
- The size of the estate and the credit score of the proposed estate trustees are factors in determining the cost of the bond.
- The bond will remain in existence until the estate is wound up and a court order is obtained directing that it may be released.
Without a Will, your common law spouse and your step-children would not be entitled to share in your estate.
Without a Will, and without a separation agreement in place, your separated spouse will have an entitlement to your estate assets. Your separated spouse may also apply to court to act as your estate trustee.
Without a Will, you will have no say in the naming of a custodial guardian for your minor children (under age 18). With a Will, if you are the custodial parent, then you can name a custodial guardian for your minor children who will have authority to act as their guardian for the first 90 days after your death. This guardianship appointment must then be confirmed by the court; however, the court will consider your wishes.
Without a Will, if there are minor children or grandchildren who are entitled to share in your estate, and if the amount is over $10,000, then this inheritance must be paid into court and will be subject to the control of the Office of the Public Guardian and Trustee. With a Will, these funds do not need to be paid into court and your trustees can manage this inheritance directly for your children or grandchildren until they reach the age when they are entitled to inherit.
Without a Will, your children and grandchildren have the absolute entitlement to receive their inheritances at age 18. With a Will, you can specify that your minor children and grandchildren will not inherit their share of your estate until an age which is later than age 18. You can also stagger the age to receive, for example, 1/3 of their share at each of ages 21, 25 and 30.
Without a Will, if you have a child who is receiving ODSP benefits, an inheritance of any funds from your estate will typically affect their entitlement to ODSP. With a Will, you can set up a discretionary Henson Trust for such a child, which will ensure that their ODSP benefits will remain unaffected by any inheritance under your Will.
Without a Will, you lose the opportunity to undertake tax planning.
Without a Will, there may be no agreement among your next of kin as to who has the right to arrange your funeral and as to what is the best manner and place for your burial. With a Will, you can set out your wishes for your funeral and your burial. Although these wishes are non-binding on the estate trustees, they will typically be respected.
With a Will, your estate trustees have the entitlement to receive your personal information from any government entity. Without a Will, obtaining personal information is a lengthier and more complicated process.
GEORGEA S. WOLFE | LAWYER
Kronis, Rotsztain, Margles, Cappel LLP
#1100-25 Sheppard Avenue West
Toronto, ON M2N 6S6
Main Line: (416) 225-8750
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