As a resident of Ontario, you may be under the impression that if you die without a Will then the government will take possession of all your money and assets. This is simply, not true. When you die without a Will (dying intestate), your possessions are distributed in accordance with the Succession Law Reform Act (SLRA). Now with that out of the way, let's talk about all of the other benefits of drafting a Will.
Having a Will ensures that your estate is administrated exactly how you want. When you draft a Will, you are exercising your right of “testamentary freedom” – the right to choose how an individual wishes to deal with one’s own asset, as they see fit, upon death. However, this right can be restricted under certain circumstances. A prime example of this occurring is when an individual has not provided “adequate” or enough support for his or her dependents.
Under Ontario law, an individual is responsible to provide “adequate” support to any dependents they may have, even in death. This means that an individual should ensure that they provide for their dependants in his or her Will. Usually, an individual’s dependant is his or her spouse and children but can include other family members or individuals. The Law is unclear with respect to the amount of support an individual is required to leave their dependants, as it varies depending on the individual’s estate, the number of dependants he or she may have, and the age of the dependants.
If the deceased does not provide adequate support for his or her dependents, then the dependents can challenge the Will on this basis. The court will then decide to uphold the validity of the Will or to rule in favour of the dependants and provide appropriate support. It is recommended that dependants seek legal advice as the process of challenging a Will is rigorous and confusing. In either case, having a Will is the best way to ensure that your estate is administered in accordance with your wishes and that your loved ones are taken care of and provided for.
If an individual dies intestate then their estate is distributed in accordance with the Succession Law Reform Act (SLRA). Under the SLRA, an individual’s estate is divided as follows:
It is important to note that even if you are separated or going through a divorce, your partner is still legally your “spouse” and will be the first person entitled to your estate. Only legally divorced spouses are no longer entitled to inherit under the SLRA. On the other hand, common law spouses are not entitled to any benefits under the SLRA. The only way to ensure that a common law partner is protected and receives anything from your estate is to create a Will naming that individual as one of your beneficiaries.
The beneficiaries entitled to inherit from the intestate person and the manner in which an individual’s estate is divided under the SLRA is very rigid and definitive. The only way to have your estate distributed in accordance with your wishes is to prepare a well-drafted Will, which considers your personal, financial and familial circumstances.
Even if an individual wants their estate to be distributed in accordance with the SLRA it is still extremely beneficial to prepare a Will. When it comes to administrating your estate, having a Will makes the process of applying for a Certificate of Appointment of Estate Trustee much easier, quicker, efficient, and a lot cheaper.
One of the main benefits of estate planning is that it allows an individual to deal with their assets and affairs in the most tax beneficial manner. Proper legal advice and estate planning can ensure that an individual benefits from tax planning and pays the least amount in estate administration taxes.
Additional benefits include, but are not limited to, the following:
A Will is arguably one of the most important and useful legal documents an individual will ever prepare. When done correctly it can ensure that your loved ones are sufficiently looked after and protect your estate.