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Why is it Important to Have a Will?

Why is it Important to Have a Will?

By:

Posted November 1, 2023

Do I need a will?

A short answer is most likely.

If you possess assets of value, such as chequing or savings accounts, investments, a vehicle, a home, or any other valuable belongings (i.e., collectibles, heirloom items, art, wine, cigar, rugs), or if you have dependents, like children or pets, it is crucial to have a will. In the event of your passing without a will, which is referred to as dying intestate, the distribution of your possessions and property will be determined by the applicable legislation in your province. This means you will have no control over who inherits your assets or who becomes the guardian of your dependents, including your beloved furry companions.

What happens if someone in Canada passes away without a will?

There is a common misconception that if you pass away without a will, your estate will automatically be distributed to your spouse, children, or closest relatives. However, the reality is that the fate of your estate is subject to the specific legislation in your provincial jurisdiction. In other words, the courts will be responsible for deciding who receives what and in what proportions.

To further complicate matters, the rules and regulations differ significantly from one jurisdiction to another. For instance, in certain provinces, the legislation stipulates that in the absence of a will, a common-law partner may inherit a substantial portion or even the entirety of the estate. In contrast, in other provinces like Ontario, a common-law partner may not be entitled to receive any portion of the estate.

The entire process of court-led decision-making consumes both time and money, thereby diminishing the overall value of the estate. This delay also means that your loved ones must wait longer to access their rightful inheritance. Additionally, the court will appoint guardians for any minor children, and their choice may not align with your own preferences.

What usually goes in a will?

A will states your instructions about how your possessions and property will be distributed when you pass away. Wills commonly include the following:

  • The name of an estate trustee (also known as executor) who will be responsible for carrying out your wishes.
  • The name of a guardian to care for any minor children.
  • Specific gifts of money, personal property or land.
  • Directions about who should get the rest (or remainder) of your money and property.
  • Instructions that allow money to be held in trust for certain beneficiaries (for example, children or people with disabilities).
  • Wills can also include funeral instructions, gifts to charitable organizations, arrangements for pets, and more.

When does a will take effect?

Wills come into effect immediately upon your passing. Prior to that, your executor does not possess the authority to carry out any tasks outlined in the will. Similarly, your beneficiaries do not have the privilege to access their inheritances until after your passing.

What DON’T wills do?

As mentioned above, wills do not give anyone access to your property, possessions, or finances while you are still living. Also, the will does not give your executor the ability or authority for any decision-making for you while you are alive, even if you become incapable. If you wish to designate an individual to handle your financial matters or make decisions about your personal care while you are alive, you must complete Powers of Attorney.

For additional details regarding Powers of Attorney, stay tuned for our upcoming blog post.

This blog post was written by Diana Tebby, a member of the Real Estate and Wills and Estates teams.  She can be reached at 613-369-0384 or at diana.tebby@mannlawyers.com.

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Diana Tebby

Diana Tebby

I advise on all facets of residential and commercial real estate, estate planning (wills and powers of attorney), trusts, and estate administration. I enjoy being hands-on with all my files and work to ensure my clients feel informed and engaged throughout each matter’s successful completion. Called to the Ontario bar in 2014, my current practice focuses on residential and commercial real estate, condominium law, refinancing and secured lending transactions, estate planning, including the preparation and review of wills, powers of attorney, the preparation of special purpose trusts, such as Henson trusts created for individuals receiving benefits under the Ontario Disability Support Program and estate administration. Originally from Barrie, Ontario, I received my undergraduate degree from McMaster University and my joint Canadian-American law degrees from the University of Windsor and the University of Detroit Mercy-School of Law. Prior to joining Mann Lawyers, I articled and practiced in Hamilton, Ontario. While attending... Read More

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