Wills and Estate Planning

Wills and Estate Planning

A well-drafted Will is one of the most valuable financial planning tools you should have. Without a Will, the laws of Ontario set out the rules for who can apply to be in charge of your estate and how your assets will be distributed. In many situations these rules can lead to undesirable and unexpected results.  However, having a poorly-drafted Will can often be worse than having no Will at all.

Reasons to Have a Will

When someone dies without a Will, it is almost always necessary to obtain a Certificate of Appointment (Probate) in order to deal with the estate.  When there is a well-drafted Will it is often possible to administer the estate without having to incur the expense and delay involved in applying for a Certificate of Appointment.  In addition, effective estate planning can allow you to reduce taxes and fees that would otherwise be payable upon death.

It is always important for anyone with children to have a Will.  If a parent dies leaving children behind who are under the age of 18, that parent’s Will allows them to choose the person they want to be the guardian for their children. Their Will can also include terms for holding the children’s share of the estate in trust until the children are old enough to handle money responsibly. 

If a parent dies without a Will, the children’s share of the estate will be difficult to access before the children turn 18, even if those funds are needed to pay for their day to day living expenses.  In addition, without a Will, assets are transferred to children when they turn 18 whether they are capable of managing their inheritance wisely or not.

People who are separated but not yet divorced also need to ensure they have a valid Will in place so that they can protect as much of their estate as possible for their children or other loved ones, and to make sure someone of their choosing will be managing their estate in the event of their death.

If you are in a common law relationship, you must have a Will if you want your spouse to inherit anything on your death.  Without a Will, your common law spouse will not automatically be entitled to inherit anything from your estate. 

Professional Wills vs. Home-made Wills

While having a Will is important for everyone, making sure you have a well-drafted Will is critical.  Home-made Wills or Wills made with ‘Will Kits’ will always require probate, resulting in costs to the estate that might otherwise have been avoided.  Even Wills drafted by lawyers who do not specialize in Will preparation can often result is avoidable costs and headaches for your Executor. 

Considerations When Planning a Will

What to think about when making your Will:

• Does your lawyer have the Will drafting skill and experience you need?
• Who would you like to inherit your estate?
• Who is dependent on you for financial support or other assistance?
• What do you own and are all assets in your name?
• Have you named beneficiaries for your life insurance, pension plan, Tax Free Savings Accounts, RRSPs and RRIFs?
• Who would be the best person to look after your estate?
• Who do you think would be the best person to look your children?
• Who would be your second choices for your Executor, beneficiaries, guardian of your children?

These questions and more will be discussed in detail when we meet to talk about your needs and goals for your Will and estate plan.

Choosing an Executor

When choosing an Executor or Estate Trustee you should look for someone you can trust.  The Executor will be in control of your assets after you are gone.  That person should have familiarity with both your financial and family situation.  You should feel confident that the person you choose is able and willing to accept the responsibility of looking after your money and property for other people.  You must also consider the possibility that your first choice for an Executor might be unwilling or unable to accept that role and name an alternate Executor.