Welcome to the Complete Last Will Guide from lawyers focusing on Wills at Wise Law Office. In this guide, we’ll cover:
A Last Will is a legal document that allows a person to leave instructions for how her assets will be divided after her death. With the guidance of Wills and Estates lawyer in Toronto serving clients across Ontario, a Last Will allows you to leave instructions about
-who manages your estate
-what property you wish to divide, and what property you wish to keep intact
-how money that is being left to someone will be handled
-how much you leave to each of your next of kin, and to charities and organizations
According to the Ontario Ministry of the Attorney General, “A person’s will is a written document that sets out the person’s wishes about how his or her estate should be taken care of and distributed after death. It takes effect when the person dies.”
For this reason, the process of planning a last will should start with answering these questions in your own mind.
We firmly believe that everyone should have a last will, but it is especially important if you aspire to do something more complex with your estate than a simple instruction of “leave it all to my spouse” or “my daughter gets everything.”
A Last Will is also important as an exercise. Besides being a legal document, a Last Will is the result of a process, in which you will think about:
-what are your family’s financial goals?
-what would happen to your loved ones if you were gone?
-how will you maintain your businesses and charitable works?
-how will you create and preserve a family legacy?
Planning your Last Will can be the springboard to many challenging, but rewarding conversations, in which you can tackle tough questions about money and family, and get advice from professionals.
Many people are understandably fixated about what will happen to them if they die without a Last Will.
But it’s also important to think about all of the positive things you can plan and provide if you do have a Last Will!
Here is a comparison of the benefits of having a Last Will made by an experienced Wills lawyer:
|NO LAST WILL||WITH A LAST WILL|
|Who gets all my money?|
|Your estate is divided between your legally married spouse (if you have one) and your children, in accordance with a set formula.|
If you have no legally married spouse or children, the Estate is divided between your next of kin.
|Subject to any obligations you owe during your lifetime (like spousal or child support), you can leave your estate to whomever you like, in whatever proportions you wish|
|Who manages my estate?|
|Your legally married spouse and each and every one of your children have the first right to manage your estate. There may be nothing stopping your spouse and all of your children from exercising the right to manage your estate.||You can name anybody, including a committee of family members, a trusted relative or friend, or a financial institution with special expertise.|
|What happens to specific assets, like my vacation home?|
|If your beneficiaries can’t come to a resolution about the property, the court may order that it be sold.||You can leave property and possessions to one or more people and impose conditions on the use of the property, or leave it to one person (like your spouse) during her lifetime, and another person after she dies or moves out.|
|If I have a child or beneficiary that needs money to be managed for her, how will the money be taken care of?|
|Any money that is going to a beneficiary will go straight to her (or her parent/guardian if she’s underaged, or disabled). It can’t be managed, e.g. in a trust without approval||You can leave money in a specialized trust fund to be overseen by your executors, the beneficiary’s parent, or someone else. They money can be invested and paid out responsibly over time- and the beneficiary will be less likely to lose any social assistance she receives as a result of this sudden windfall.|
|If I own a business, how will it be dealt with through my estate?|
|Your interests in the business will be treated no different than your other assets, they will be divided up between the beneficiaries- unless the beneficiaries can come up with a solution amongst themselves||You can use your last will to reorganize your business to bring a spouse, partner, sibling, or the next generation of your family into a more stable structure. You may also be able to use effective estate planning to lower the amount of tax you pay on your business assets.|
|What will happen to any loans I have given to my friends or family?|
|Your executors will need to make a decision, using the best information available to them, about whether you expected debts and loans to be repaid, and how much had already been repaid.||You can leave specific instructions in your last will to either call in or forgive certain debts owed to you. Your executors can use this information to guide how they deal with outstanding debts and loans.|
There is a lot of information floating around on television and the internet about Last Wills. Some of it is true, a lot of it is not and are simply common misconceptions about Last Wills.
Here are three misconceptions we encounter about Wills, Estates, and Will planning:
It’s hard to say where this urban legend came from, but in almost all cases, it’s simply not true.
In Ontario, if you die without a Last Will, your estate is divided in accordance with a set of rules set out in the Succession Law Reform Act. Broadly speaking, the rules are that if you have a spouse, children, or a spouse and children who survive you, your estate is divided amongst them, in accordance with a specific formula. If you have no surviving spouse or children (or other descendants), the money is divided amongst your surviving relatives. If nobody from among your surviving relatives comes forward to claim your money, a specialized government body will begin a search for your next of kin, until it finds someone.
A number of companies that offer “professional” last will kits that let you prepare your own document. Some of these are simple free forms with “fill in the blank” fields. Others are sophisticated seeming “Wizard” programs. There are a number of problems that lawyers and judges have encountered with these “DIY” kits:
Last Wills need to be read and understood by human beings. The main purpose of a Last Will is not to demonstrate how clever your lawyer is, but to convey to your beneficiaries, in clear, precise words, what you want to happen after you die.
In the 21st Century, the overwhelming preference of forward-thinking lawyers and judges is that Last Wills be a simple and clear as possible, using straightforward language, and straightforward clauses. This is the best way to convey your instructions and expectations.
Believe it or not, it is sometimes harder for a lawyer to write a short, clear, Last Will than a long, wordy one, because it forces her to think about what the client is really trying to say, rather than relying on a fifty-year-old precedent to say it for you.
It is generally legal for a person to be both an executor and beneficiary of an estate. In fact, this situation happens very often. When somebody acts as an executor, she will need look after all the beneficiaries (including herself) without favouritism, and with the appropriate level of care and discretion.