Wills and Estates (2/3) – All About Wills

Sep 18

Wills and Estates (Part 2/3) – All About Wills

Please note that the following information is being provided for educational and informational purposes and does not constitute legal advice. If you require a lawyer, you should make a post on Dynamic Lawyers (100% free and anonymous). We have trusts and estates lawyers registered who can help you with preparing your will, power of attorneys (for property and personal care), and living wills. If you’d like to learn more about Wills and Estates in Ontario, check out our FREE Legal Guides.

What is the basic structure of a Will?
Simple Wills generally follow the same structure:

Identify the person who is making the will.
Revoke previous wills.
Appoint an Estate Trustee and a Substitute Estate Trustee (i.e. someone who is legally competent and will administer your estate as per your final wishes).
List your wishes concerning your taxes, funeral, and personal effects.
List and divide your gifts/assets.
Distribute the residue of your estate (i.e. left over after all liabilities have been paid and all other gifts distributed).
Outline the powers and limits of your Estate Trustee.
Dispute resolution provisions.
Execution: sign and date the will and have it witnessed.

Again, it is advisable for you to contact a lawyer on Dynamic Lawyers to have your Will properly drafted.

What are the benefits of having a Will
If you have a Will, you can:

decide who will be the beneficiaries of your estate (i.e. the pool of assets which will be distributed after certain expenditures are paid);
give personal items to specific individuals;
include persons who are not related to you by blood to inherit a part or all of your estate;
allow you to divide the residue of your estate according to specifically identified trusts;
select an Estate Trustee (i.e. a person who will administer your estate and pay out the specific trusts described in your Will);
select a Guardian for your minor children (if you have any);
reduce the cost of administering your estate (e.g. by avoiding fighting and estate litigation); and
reduce income taxes (especially if you die and leave a spouse behind).

What happens if someone dies without a Will?
If someone dies without a Will in Ontario, their property will be divided according to rules set out in the Succession Law Reform Act. There is a standard procedure which divides property according to family relationships. Here are some of those rules:

If a person dies without a Will and is survived by a spouse without children, then the spouse is entitled to the property absolutely: s. 44.
Worth mentioning is that a spouse is generally entitled to a preferential share (under the Regulations made under that Act) up to the first $200,000 of the estate before it is divided among any remaining heirs: s. 45 and 46.
If a person dies without a will and a spouse and one child survive that person, then the spouse will be entitled to their preferential share and an additional 1/2 of the residue of the estate: s. 46(1).
If a person dies without a will and a spouse and children survive that person, then the spouse will be entitled to their preferential share and an additional 1/3 of the residue of the estate: s. 46(2).
If a person dies without a will and without any spouse or children surviving him or her, then their living parents will be entitled to the property either equally (or one of them will get it absolutely if only one is alive): s. 47(3).
If a person dies without a will, without any spouse or children, and without any parents, then their property will be distributed equally among any living brothers and sisters (or their children): s. 47(4).
If a person dies without a will, without any spouse or children, without any parents, and without any brothers or sisters, then their living nephews and nieces inherit an equal portion of the residue of the estate: s. 47(5).
Finally, if a person dies and there is no surviving spouse, children, parent, brother, sister, nephew or niece, then the property “shall be distributed among the next of kin of equal degree of consanguinity to the intestate equally without representation”. If a person has no such living next of kin, the generally the estate goes to the government.