Though most people are aware that they need a
will, the majority -- about 70% of us -- don't have one. People procrastinate
for many reasons, but it's important to know that writing a will doesn't have
to be complicated or expensive. And once it's done, you can rest a little
easier, knowing that your wishes will be followed after your death.
A Will is a document that is created to help make your loved ones decision at the time of death. The Will contains important direction as to your wishes for your funeral. It can also contain your directions on distributing the estate amongst your loved ones.
Your Will can also help to name someone to be left in charge of your children if something were to happen to you. This is very important when there are infants or young children in the family.
The Will also simplifies the legal process for the lawyer which will result in minimizing the legal costs that your family will encounter.
One of the most important aspects of the Will is that it will prevent family bitterness as it will help guide your family through all aspects of settlement of the estate.
There is no specific person responsible for making your funeral arrangements. This can make coordination of funeral details very difficult and often leaves hurt feelings if everyone does not agree.
If you die without a Will, you have died intestate. Your property must go through the probate process in order to have the legal title to the property transferred to your heirs at law. Applicable provincial statutes define your heirs at law. The laws of the province where you live control the distribution of your personal property.
The rules for determining who gets property distributed from an intestate estate have many variations. Subtle differences between the rules can have a material effect on who inherits when there is no Will.
The following are examples of intestate estate distribution rules, with respect to community property. Please consult the Succession Law Reform Act (Ontario laws) for the complete text.
Where a person dies intestate in respect of property and is survived by a spouse and not survived by issue, the spouse is entitled to the property absolutely.
Where a person dies intestate in respect of property having a net value of not more than the preferential share and is survived by a spouse and issue, the spouse is entitled to the property absolutely.
Where a person dies intestate in respect of property having a net value of more than the preferential share and is survived by a spouse and issue, the spouse is entitled to the preferential share absolutely.
The preferential share is the amount prescribed by a regulation (consult the laws of Ontario).
Where a person dies in respect of property and leaves a spouse and one child, the spouse is entitled to one-half of the residue of the property.
Where a person dies intestate in respect of property and leaves a spouse and more than one child, the spouse is entitled to one-third of the residue of the property.
Where a child has died leaving issue living at the date of the intestate's death, the spouse's share shall be the same as if the child had been living at that date.
Where a person dies intestate in respect of property and leaves issue surviving him or her, the property shall be distributed, subject to the rights of the spouse, if any, equally among his or her issue who are of the nearest degree in which there are issue surviving him or her.
Where any issue has predeceased the intestate, the share of such issue shall be distributed among his or her issue and the share devolving upon any issue of that and subsequent degrees who predecease the intestate shall be similarly distributed.
Where a person dies intestate in respect of property and leaves no spouse or issue, the property shall be distributed between the parents of the deceased equally or, where there is only one parent surviving the deceased, to that parent absolutely.
Where a person dies intestate in respect of property and there is no surviving spouse, issue or parent, the property shall be distributed among the surviving brothers and sisters of the intestate equally, and if any brother or sister predeceases the intestate, the share of the deceased brother or sister shall be distributed among his or her children equally.
Where a person dies intestate in respect of property and there is no surviving spouse, issue, parent, brother or sister, the property shall be distributed among the nephews and nieces of the intestate equally without representation.
Where a person dies intestate in respect of property and there is no surviving spouse, issue, parent, brother, sister, nephew or niece, the property shall be distributed among the next of kin of equal degree of consanguinity to the intestate equally without representation.
Where a person dies intestate in respect of property and there is no surviving spouse, issue, parent, brother, sister, nephew, niece or next of kin, the property becomes the property of the Crown, and the Escheats Act applies.
Making a will that will accomplish what you want it to isn't nearly as complicated as many people fear. There are just a few simple rules; follow them and your wishes will be carried out.
Age: To make a will, you must either be at least 18, or an "emancipated" minor.
Mental State: You must be of "sound mind" to make a valid will. It's not a rigorous requirement.
The standard interpretations require that you:
- know what a will is and that you're making one;
- understand the relationship between yourself and those persons who you would normally provide for, such as a spouse or children;
- understand what you own;
- and be able to decide how to distribute your property.
No. But there are constant changes in the law, and one must stay current on these changes. Unless the will is a complex one, it can usually be done with modest cost. If there are complex issues, a will must be properly prepared to prevent costly problems that might arise following death.
Any adult of sound mind is entitled to make a will. (If you are reading this article and can understand it, you are of sound mind.) Beyond that, there are just a few technical requirements.
The will must be typewritten or computer generated.
The document must expressly state that it's your will.
You must date and sign the will.
In Ontario, the will must be signed by two witnesses. They must watch you sign the will, though they don't need to read it. Your witnesses must be people who won't inherit anything under the will.
You don't have to have your will notarized. In many provinces, though, if you and your witnesses sign an affidavit (sworn statement) before a notary public, you can help simplify the court proceedings required to prove the validity of the will after you die.
Do I need to file my will with a court or in public records somewhere?
Answer:
No. A will doesn't need to be recorded or filed with any government agency. Just keep your will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is.
Most wills are retained either by the law firm who prepared the Will or at the residence of the person who made the Will.
Most law firms that hold the Will keep it in safekeeping free of charge. The Will can be picked up by you at any time or the law firm will send the Will to you upon receiving a written letter to this effect from you or your executor upon your death. This is a relatively safe procedure. You should verify however, in what manner the Wills are stored, that is, whether the Wills are stored in a Vault or in a filing cabinet at the law firm. Your decision should be governed accordingly.
We recommend that you do not leave the Will at your residence. Not only is it susceptible to theft, but in the event of a fire, you and your Will are unavailable. This is clearly not what you intend. We also do not recommend that you keep your Will in a safety deposit box, as in some provinces the safety deposit box is sealed at the time of death. Keep the Will in any other secure place and ensure that your executor is aware of its location
Most of the challenges to invalidate Wills are by potential heirs or beneficiaries who got little or nothing. Questions on the validity of a Will must be filed in probate court within a certain number of days after receiving notice of the death or petition to admit the Will to probate.
Typical objections include the following.
1. The will was not properly drawn, signed or witnessed, according to formal requirements.
2. The decedent lacked mental capacity at the time the Will was executed.
3. There was fraud, force or undue influence.
4. The will was a forgery.
If the Will is held invalid, the probate court may invalidate all provisions of the Will or only the challenged portion(s). If the entire Will is held invalid, generally the proceeds are distributed under the laws of intestacy of the probating province.
Needless to say, if there is even the possibility of a Will being contested, the services of an experienced probate lawyer are a must.
If you have a child with special needs, ensure that you relay this information to your lawyer. You may wish to set aside a sum of money to deal with this issue. This is often addressed in the Will by establishing what is known as a Trust Fund. After the payment of all debts, the Trustee who is appointed under the Will to receive funds will be directed to use a certain amount of money from the Estate for the special needs person who is referred to as the Beneficiary. It is very important when a Trust Fund is established under a Will that you receive competent legal advice. The amount of the Trust Fund may be large if the child is to be looked after for an extended period of time. You must be sure that the Trustee, (the person who administers the Trust), is not only trustworthy but not of an age that the Trustee will likely predecease the Beneficiary. The Trust must have a provision for the replacement or addition of other trustees over time, if required.
If you have young children, you should choose a personal guardian -- someone to raise them in the highly unlikely event you can't.
If your children are young, you've probably thought about who would raise them if for some reason you and the other parent couldn't. It's not an easy thing to consider. But you can make some simple arrangements now that will allay some of your fears, knowing that in the highly unlikely event you can't raise your kids, they will be well cared for.
All you need to do is use your will to name the person you want to be the "personal guardian" of your children if one is ever needed. Then, if neither you nor the children's other parent can raise them and a court must step in to appoint a guardian, the judge will appoint the person you nominated in your will (unless, for some reason, it is not in the best interests of your children).
If you don't name a guardian in your will, anyone who is interested can ask for the responsibility. The judge then must decide, without the benefit of your opinion, who will do the best job of raising your kids.
