TABLE OF CONTENTS
Note to our readers: The information provided in this article is a brief summary for information purposes only and is applicable only in the Province of Ontario. It is not intended to be legal advice. Full and complete legal advice can only be given by a lawyer who has detailed information about your individual circumstances.
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WHO NEEDS A WILL? YOU do if you want:
- an executor to take charge of your assets when you die;
- your family to get what you want, not what a government formula says;
- to save time, expense and hassle for your family;
- a guardian for under 18 children;
- to keep the government from interfering in your estate;
- a commonlaw spouse to inherit;
- to protect your assets you worked to get from claims on your children's divorces.
SHOULD YOU SEE A LAWYER? Some people make their own will, but professionals do it best! You go to a professional dentist, doctor, chiropractor. Remember, you cannot fix mistakes after you are dead!
It is also important that BOTH SPOUSES have a will as spouses commonly have their own assets, and in case of simultaneous deaths such as a car accident.
IF YOU DIE WITHOUT A WILL:
- Agovernment formula will divide your assets; this formula may well not be what you would have wanted for the distribution of your assets.
- no executor is appointed to immediately take charge of your funeral and the administration of your estate;
- the shares of any children who are under 18 years old will be taken over and managed by the Ontario government until the child reaches 18; then he or she gets the share of your estate outright. Little or no discretion and certainly no family consideration is given to using the money for your child's benefit.
- common law spouses do not inherit!
- no guardian is appointed to look after the children; family members may disagree or fight over who will raise the children. At worst the Children's Aid Society will step in.
- disagreements flourish amongst beneficiaries and hardships arise.
HOW SHOULD YOU DISPOSE OF YOUR ASSETS
- usually they are left to your spouse if he/she survives you by 30 days (this is to provide for car accidents);
- if both spouses are dead, the children can be named as beneficiaries;
- if the children are too young (under 18), or not yet responsible adults, a trust may be establiched in the will to look after your estate and the children;
- in the trust for the children, the trustee invests the assets and uses them and the income for the child's benefit to a specific age;
- provisions should be made for the share of any child who dies before you, with you or afterwards before the trust is finished;
- if there is no spouse nor children, your assets can be left to relatives, friends or charity;
- the law does require you to adequately provide for your dependants such as spoue or children;
- if your spouse does not recieve all or most of your estate, he or she can claim what is given in the will or under the Family Law Act, 1/2 the difference between the value of your assets and the value of his or her assets.
THE EXECUTOR /TRUSTEE
The executor (sometimes called the "estate trustee") is the person named in your Will who will execute or administer your estate. He or she:
- is responsible for your funeral, payment of debts and income tax, carrying out the terms of your will and selling or transferring your assets to your beneficiaries;
- holds the shares of your estate for your children until they grow up as trustee;
- is commonly your spouse.
- An alternate executor is usually named in case your spouse is dead or unable to act;
- the alternate executor is often an adult child or friend or relative;
- lawyers, accountants and trust companies will also act as executors but will charge for their services.
your executor and trustee must be someone in whom you have faith and trust!
- this is the person you name in will to raise your children under 18;
- appointing a guardian in your will helps to avoid family disputes and provides for your children's care and upbringing;
- the appointment of the guardian is legally binding for 90 days after your death unless a court sets it aside;
- after the 90 days it can be confirmed by the court, but this is seldom necessary.
obtain his or her consent and discuss how you want your children raised!
YOUR BURIAL AND FUNERAL WISHES
- you may set out particular wishes in your will;
- these burial and funeral directions are not legally binding on your executor;
- they must be communicated to your executor before you die (or he/she won't know in time!)
Sign the back of your driver's licence for organ and eye donations. These may be confirmed in your will.
these are gifts of specific items, eg, jewellery to children, money to your church or THE TEMISKAMING FOUNDATION; or other charities that may be set out in your will;
- many people make their own informal, non binding list for sentimental items; but, please exercise caution with handwritten lists - these can revoke your will!
IF YOU HAND-WRITE YOUR LIST DO NOT SIGN IT!
Ramsay Law office will store your will free of charge or you can store the original will in your safety deposit box or other safe place outside your home. Ramsay Law Office will give you a copy of your will to keep at home.
LEGAL COSTS (for average wills)
Complex wills and powers of attorney may cost more.
CONFLICTS OF INTEREST
The Law Society of Upper Canada believes there is a potential conflict of interest when both spouses retain the same lawyer to prepare their wills. Consequently we are required to advise you that if one of you were later to contact us with different instructions to change or revoke your will, we would have to advise the other and not act without permission of both.
We therefore require your consent to act for both of you.
CHARITIES AND YOUR WILL
71% of people make charitable gifts while they are alive; 14% make a charitable gift in their will. If people gave as generously in their wills as they do in their lifetimes, cancer might have been cured 20 years ago!
These are Canadian statistics. As a lawyer who has practiced in Temiskaming for 33 years, I would say that far more than 71% of local people give in their lifetime and far less than 14% make a gift in their will.
What should we do? For the usual family, the husband will die first, and everything will be given to the surviving spouse, who may need everything to live on - we can't foresee the future. When both spouses die, the estate is divided up amongst the children. THAT is when the opportunity arises to make a charitable gift or bequest. Before the estate is divided up amongst the children, make a bequest to charity. The amount not received by each child will be small, and who knows, your gift may help to find the cure that will save the life of one of your children or grandchildren! For those people without children, make it more for charity. AND, the cost is not 100%, it is as tax deductable as it would have been in your lifetime, and if it is more than can be deducted in the year you died, it can be used in prior years to obtain a refund
What charities? Cancer Society, Heart and Stroke, Lung Association,World Vision, your church, the list is endless. Be careful that your charity is named properly in the will to avoid confusion or problems. Lawyers keep books listing the various charities and their proper names.
How about a gift that lasts forever? Tri Town Foundation gives an opportunity to make a donation which will bear your name forever. The money is invested, and the investment income given to local charities.
There are many other planned giving options outside of wills. Life insurance is a great way to fund a gift. Or how about giving money to your charity now, and then using the tax refund to buy an insurance policy to replace the amount of the gift in your estate?
FAMILY LAW ACT
- this is the law that divides up assets between seperating or divorcing spouses; it also permits you to say in your will that what you leave to a beneficiary and the income earned on it will belong to the beneficiary seperately and not be subject to a claim by a spouse on a marital breakdown;
- Ramsay Law Office commonly includes this provision in your will.
MULTIPLE WILLS AND ESTATE PLANNING - CORPORATE
Many companies have increased in value, creating a problem on the death of the shareholder. If it is necessary to "prove" the will because of other assets such as real estate, investments, etc., then until now it has been necessary to include the value of the company shares in the probate value to calculate the estate administration tax (commonly called "probate fee") which has to be paid at the time of application for what is called a Certificate of Appointment of Estate Trustee. The probate fee is 1.5% of the value of the estate. This is usually just a nuisance tax, but if the value of the company shares is added in, can be quite high. On $500,000 worth of shares, the fee if $7,500, adn increases proportionately with higher values.
Recently the government has approved the idea of two wills, one just for the company shares, and one for all other assets. As a result, just the second will needs to be proved and probate fee paid on the value of assets in that will. The other will look after only the company shares, and does not need to be proven, saving the probate fee on the value of company shares.
Both will can have the same executors and beneficiaries.
There is of course no guarantee that if the provincial government changes, the law won't be changed as well.
Ontario Government Formula
Who Inherits if there is no Will
Rules of Inheritance
|If the following people survive:||they will inherit:|
|the spouse only (this does not include common law spouses!)||everything|
|lawful spouse and one child (including illegitimate children)||the spouse inherits the first $200.000 and the rest, if any, is divided equally between the spouse and the child|
|lawful spouse and more than one child (including illegitimate children)||the spouse inherits the first $200,000; the rest of the estate, if any, is divided 1/3 to the spouse and the rest equally amongst the children|
|children only; no spouse||the estate is divided equally amongst the children; if any children predeceased their children will inherit their share|
|parents only; no children and no lawful spouse||the surviving parents share equally|
|brothers and sisters only; no lawful spouse, children or parents||the brothers and sisters share equally; if any died before the deceased, their children will inherit their share equally|
|nephews and nieces only; no spouse, no children, no parents, no brothers and sisters||those nephews and nieces alive at the time of the death share equally;|
|next of kin; no spouse, no children, no brothers or sisters, no nephews or nieces||if there are grandparents, they share equally, otherwise uncles and aunts; if none of these, then cousins equally|
|none of the above relatives||Government of Ontario|
Note to readers: The above is a synopsis of the Rules of Intestacy set out in the Succession Law Reform Act, R.S.O. 1990 c.26
Note also that a spouse may have an equalization claim under the Family Law Act, Ontario or a claim for support under the Succession Law Reform Act.