Last Will
Welcome to the Complete Last Will Guide from the lawyers focusing on Wills at Wise Law Office.
In this guide, we’ll discuss:
- Why Do I Need a Last Will?
- What Happens If I Die Without a Will, and
- Common Misconceptions of Last Wills.
Why Do I Need a Last Will
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, 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
- Donations you may wish to make to charities and other 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.”
Preparing 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.
Contact WISE LAW‘s Toronto Wills lawyers by email or by telephone at (416) 972-1800 to arrange a consultation.
Email WISE LAW with your Wills & Estates Law Question
Intestacy: What Happens if I Die Without a Last Will?
Many people are understandably worried about what will happen 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 |
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How is my Estate distributed? |
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Without a Last Will, your estate will be an intestacy. It will be divided between your spouse (if you are legally married) and your children, in accordance with a formula established under Ontario’s Succession Law Reform Act:
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Subject to any obligations you may have to your dependant children or spouse, you can divide your Estate as you see fit in your Last Will.
Spouses also have significant property rights against your Estate under the Ontario Family Law Act (FLA) that could supercede the provisions of your Will, particularly if your Last Will does not adequately provide for your spouse.
According to section 6 (1) of the FLA, when a spouse dies leaving a will, the surviving spouse can elect to take under the will or to receive the entitlement s/he has to equalization of net family property under section 5 of the FLA.
It is important to obtain legal advice from a qualified Toronto Wills lawyer to ensure these entitlements are carefully considered and addressed in planning for your Estate. |
| Who manages my estate? | |
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If you are legally married, your spouse and your children have the first right to manage your estate. Your spouse and all of your children may be permitted to exercise 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 a 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.
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| If I have a child or beneficiary that needs money to be managed for her, how will the money be taken care of? | |
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Any money that a beneficiary is entitled to will go straight to her (or her parent/guardian if she’s below the age of majority, or unable because of disability to manage her own affairs). The funds 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.
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| If I own a business, how will it be dealt with through my estate? | |
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Your business interests will be treated no different than your other assets They will be divided between your beneficiaries – unless the beneficiaries can agree on a solution such as sale or management plan, amongst themselves
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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.
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| What will happen to any loans I have given to my friends or family? | |
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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. |
Contact WISE LAW‘s Toronto Wills lawyers by email or by telephone at (416) 972-1800 to arrange a consultation.
Email WISE LAW with your Wills & Estates Law Question
Common Misconceptions About Last Wills
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:
1. If you don’t have a Last Will, “the Government” gets all your money.
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.
2. You don’t need a lawyer to make a Last Will; there are great DIY Will kits available online.
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:
- Many “Will Kits” are not designed specifically to reflect the law of Estates in Ontario.
- Last Will “Kits”, may create confusion by allowing you to create contradictory instructions, that your beneficiaries (and their lawyers) will not know how to interpret.
- Poorly designed kits can contain errors that, if not checked properly, can invalidate portions of your Will.
- If someone challenges the validity of your Will in the future, there may not be a reliable witness, like a lawyer, who can testify that you were of sound mind when the Will was executed.
- The Will Kit may not come with proper instructions about how to sign the Will in the presence of witnesses, which can cause the entire will to be invalid.
3. A Last Will should be very long and complicated with lots of classy sounding legal jargon, so people know it’s the “real deal”
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.
4. If somebody is your beneficiary, that person cannot also be the executor of your estate.
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.
Contact WISE LAW‘s Toronto Wills lawyers by email or by telephone at (416) 972-1800 to arrange a consultation.
Email WISE LAW with your Wills & Estates Law Question
This general information about Ontario Wills and Estates law is not a substitute for legal advice and may not be relied on as such. It is not applicable to any specific case, and is intended for information purposes only. Readers are expressly advised to consult with a qualified Toronto Wills and Estates lawyer for advice regarding their specific circumstances and estate planning reqirements.
© Garry J. Wise and Wise Law Office, Toronto, Ontario. This information may not be reproduced without consent in writing.