It is somewhat shocking how few people have a Will. Many people assume they do not need a Will, or that it is too time consuming and expensive to make one. However, the reality is, having a Will makes life so much easier for your family and friends after your passing. It also allows YOU to decide how you want YOUR estate distributed upon your death.
When someone dies without a Will, they are said to have died “intestate.” This means that the Succession Law Reform Act decides how your estate will be distributed instead of you deciding.
Generally, your estate will be divided as follows under the SLRA: If you die with (1) a spouse and no kids then your spouse receives 100% of your estate; (2) a spouse and kids then your spouse gets the first $200,000 and the remainder (if any) will be divided amongst your spouse and your kids; (3) no spouse and kids then your kids will share in 100% of your estate; and (4) no spouse and no kids then your estate will be divided amongst your family living at the time of your death, in order of parents, siblings, nieces/nephews etc.
You may be looking at these distributions and thinking that it would be okay for you to have your estate distributed in accordance with the rules above. However, some things you may not be considering are: (1) You must be legally married to be considered a spouse; a common-law spouse will receive nothing; (2) if you are separated, but not legally divorced, your separated spouse will take under your estate; (3) if you have step-children that are not legally adopted, they will receive nothing; (4) if you are married, your spouse will get the bulk, or all, of your estate, and your parents, siblings etc. will receive nothing.
It is even more important to have a Will when you have young children, as the last thing you want is the Court determining guardianship of your minor children.
Besides the actual distribution of your estate, having a Will makes the estate administration process a lot smoother for your family and friends. The Court will have less of a role, and probate fees can be minimized if you allocated assets properly within your Will.
Having property drafted Wills and Powers of Attorneys can be done for a reasonable cost, and be very beneficial after your passing.
Megan Whelan is an associate at the law firm of Cobb & Jones LLP. For more articles, visit the Library page at www.cobbjones.ca.