Contemplating mortality is often left to Shakespearean soliloquies: we prefer to avoid the subject. While conversations about death, funeral and burial arrangements, and distributing our property can provoke consternation, not having a will at your time of death can exacerbate tragedy and compound the complexities of estate administration for your loved ones.
Arranging to have a will drafted is too often a reactionary measure to a severe medical diagnosis, family conflict, or old age- but it should not be. A will conveys important last wishes that provide certainty and clarity during a time of confusion and mourning. Making a will and discussing your estate plan with loved ones should be proactive and deliberate: to avoid surprise and mitigate the pitfalls of dying without a will (also referred to as “dying intestate” or “intestacy”).
In Ontario, having a will is not mandatory. According to a survey conducted by the Lawyers Professional Indemnity Corporation (LawPRO), nearly 56% of Canadians do not have a properly executed will. Of those surveyed, 29% said they did not have a will because they do not know where to get started.
The consequences of dying without a will vary greatly. Dying intestate may have a lesser impact on the estate and family of someone who has no spouse, no dependents, does not own real estate, has little property to speak of, and does not know or care what happens to their property when they die. Conversely, the estate of someone married, with dependents, who owns real estate and other significant assets, knows who they want to act as their Estate Trustee(s) (also sometimes referred to as "trustee" or "executor") and guardians for children, and has a general idea of how they want to distribute their property may be severely impacted by not having a will.
Some compelling reasons to have a properly drafted will include:
1) You can appoint an executor(s) of your choice.
A will allows you to name your executor(s). Named executors can immediately start the process of administering your estate after death. By appointing executors in a will, you ensure that appointed executors are people you know and trust and will act in the best interests of beneficiaries. If you die without a will, a court will dictate who will act as your executor(s). There is no guarantee that a court will appoint the most suitable person. If there is a conflict between two or more interested parties, the appointment may be delayed.
2) Your will distributes your property according to your wishes, not intestacy laws.
If you die without a will, your wishes regarding the distribution of your property are irrelevant. Instead, your estate will be distributed in accordance with Part II of the Succession Law Reform Act, even if you made promises concerning specific property before you died (unless it qualifies as a gift mortis causa). If you wish to divide your estate in a manner that is different than distribution on intestacy, you must have a will.
Having a will may be especially important for those in long-term common-law relationships. Common-law spouses do not have an automatic entitlement to share in their deceased spouse's estate. Not having a will means that your common-law spouse may not have access to necessary resources to take care of children, pay bills, or purchase necessities. Although common-law spouses can make claims for dependent support against an estate, such claims are costly and often create animosity between spouses and other beneficiaries.
3) Will planning provides opportunities to minimize tax and probate fees.
Hiring a lawyer to draft your will may create opportunities for tax planning through the estate planning process. Estate lawyers are required to inquire into basic biographical information about you, your relatives, your assets, your debts, your executor(s), beneficiary designations and so on. The will planning process allows lawyers to gain insight into their client's circumstances. In turn, the lawyer can advise their client of estate planning strategies to minimize probate fees (also called "Estate Administration Tax") and potential income tax obligations incumbent on their estate.
For example, placing certain accounts into joint names with a spouse would cause those accounts to pass directly to the spouse on death, thereby avoiding inclusion in your estate and associated probate fees. Certain registered assets such as RRSP's, RRIF's, TFSA's, and RDSP's may pass outside of your estate (i.e. avoid probate fees) if beneficiaries are designated for those assets. Life insurance proceeds also avoid probate or income taxes where proper designations have been completed. Spousal rollovers may be available for certain assets, such as your RRSP, allowing a deferral of tax until the death of the second spouse.
Owning shares in a private corporation, foreign property, some personal effects, and first dealings of Ontario real estate may also present tax and probate planning opportunities. These are just some of the benefits of the will planning process, which often facilitates a more cost-effective and tax-effective transfer of your estate. Not hiring a lawyer to assist with drafting a will may eliminate the opportunity for effective tax and probate planning.
4) A will makes your wishes for guardianship of minor children known.
A will also enables you to appoint guardians for minor children after you die. To read more about appointing guardians in a will, click here. Although guardianship appointments are subject to court approval, but courts will rarely interfere with your wishes of proposed guardians that you know and trust and who are considered suitable.
5) A will can reduce delays and costs when administering an estate.
Having a will may reduce complications and delays when your executor(s) apply to a court to probate (request court approval) of your estate. Additional costs of not having a will can take many forms, from higher tax and probate fees, conflict with family members and unpaid creditors, and higher legal fees for the probate application. The process for applying for the probate application to appoint an estate trustee without a will is generally more complex, delayed, and requires the consent of estate beneficiaries.
6) A will allows you to be charitable after death.
Dying without a will prevents you from making any bequests to charitable organizations. If you intend to leave one or more cash legacies to registered charities you will likely require a will. Most estate planning lawyers will help their clients find charities that align with their philanthropic goals.
Creating a will is only the first step in securing your estate plan. A significant change in assets, beneficiaries, an executor(s) no longer willing or able to act, or other life events such as marriage or separation may necessitate changes to your existing will. Shakespeare famously referred to death as "...the undiscovered country whose bourn no traveler returns". Estate planning reminds us that we cannot ask those who have passed if they regret not getting a will before their departure: but we can plan for our unexpected journey.
March 10, 2022