November is Make a Will Month – Do You Have Your Estate Plan in Place?
Your Estate Plan
Let’s first address the elephant in the room! Dying. You will die, I will die, we all will die. It may not be tomorrow, or next week, or for many years, but the trouble is, we often do not know when the inevitable will hit. Yet, we are reluctant to talk, let alone plan for, this difficult reality. We may think that we have lots of time to figure things out or live in denial that the inevitable will ever happen to us.
But the best thing you can do for your family is to get your affairs in order now. As difficult as it will be to have this conversation, the consequences of not having a plan in place can be unfortunate.
What is an Estate?
During your life you may acquire assets such as a house, personal belongings, savings, stocks, insurance policies, pensions, etc. You will likely also acquire debts and liabilities such as a mortgage, car loan, line of credit, support obligations, etc. When you die, these assets and liabilities form your Estate.
What is a Will?
A Will is a written legal document created during your life in which you provide instructions on how your Estate should be administered on your death. In the Will you can:
- Appoint the individual(s) to administer your Estate (Estate Trustee);
- Identify the individuals or entities you wish to receive your assets (Beneficiaries);
- Appoint the individual(s) you want to take care of your minor children (Guardians); and
- Create trusts;
The Succession Law Reform Act (SLRA) is the Ontario legislation that outlines what is necessary for a Will to be valid. A valid Will (with some exception):
- must be in writing;
- must be signed (or acknowledged) by the testator;
- must be witnessed by 2 or more witnesses (who are not beneficiaries under the Will or the spouse of the testator)
Rules under the SLRA do not apply to members of the forces who are on active service who may make a will by a writing signed by him or her or by some other person in his or her presence and by his or her direction without any further formality or any requirement of the presence of or attestation or signature by a witness. The SLRA also provides that a testator may make a valid will wholly in his or her own handwriting and signature without formality, and without the presence, attestation or signature of a witness, also known as a holograph will.
What happens if you die without a Will?
If you die without a Will (dying intestate), the administration of your Estate and distribution of your assets will be governed by the SLRA and left to the court system to determine. Your Estate may ultimately be distributed to people you may otherwise not have chosen to benefit from your Estate.
Who should have a Will and when?
It is a misconception that people who don’t have a lot of money or kids don’t need a will. To the contrary, everyone’s Estate will require some degree of administration. Regardless of the size of your Estate, some planning now can save a lot of time, money and grief for your family later.
It is never too early to prepare a Will. A Will is a living document which means that as long as you have the mental capacity, you are able to change your Will at any time, and as often as you would like. Waiting until ‘later’ or when you are ‘older’ increases the chances that you may not get the chance to express your wishes about your Estate.
Why should I have a lawyer draft my Will?
Drafting a Will is not just about filling in blanks – it is about gaining a full appreciation of your assets, the family dynamics, identifying potential tax issues and areas of potential future Estate Litigation.
Having a carefully prepared and properly executed Will ensures that your wishes can be carried out after you die. Failing to have a Will, or having an improperly drafted Will without the benefit of professional advice, can lead to an unintended full or partial intestacy of your Estate and may give rise to disputes and confusion regarding your wishes.
A lack of planning may delay the administration of your Estate while your family navigates the complex legal process, add to the costs and ultimately reduce the assets available for distribution to your beneficiaries.
Do yourself and your family a favour by having the difficult conversation now – you and your family will be thankful you did.
This blog post was written by Ines Jelic, a member of our Wills and Estates, Estate Litigation and Personal Injury teams. She can be contacted at 613-566-2055, or by email at firstname.lastname@example.org.