According to a poll conducted by the Angus Reid Institute in 2018, more than half of Canadians do not have a last will and testament in place. This means that more than half of Canadians will have no say in what happens to their assets when they die. What’s more, of the less than 50 per cent of Canadians who do have a will, only one-third say that it is up to date. 

Why do Canadians put off writing a will?

According to the same poll, about 25 per cent of Canadians feel that they are “too young” to worry about writing a will. An additional 25 per cent say that they don’t have enough assets to make the process (and the expense) worthwhile. 

Having a will in place ensures that your wishes are carried out when you die. Without a will, legislation takes over and you are not given a say in how your assets and property are distributed. 

A will does more than outline how your assets and property are distributed. If you are a parent, a will is also important for ensuring your children are taken care of if you die before they reach adulthood. Through a will, you can name a guardian for your children so that you can ensure that they are cared for by the relative or loved one of your choosing.

Who needs a will?

Anyone with property and assets should have a will. Your will should be kept updated as you move through different life events—marriage, children, property acquisition, divorce, or deaths in the family, can all impact how you wish to distribute your assets when you die.

Anyone who is a parent should also have a will. A will allows you to name a guardian for your child or children should you die before they reach adulthood. Without a will, you will not have a say in who becomes the guardian of your child or children.

What happens if I die without a will?

Wills and estates law is governed by provincial legislation. If you die without a will in Ontario, you are considered to have died intestate. If you die intestate, the Succession Law Reform Act sets out how your property and assets (your estate) is distributed.

Typically, if you die intestate, your estate will be distributed as follows:

  • If you have a married spouse, but no children, then your spouse will receive your entire estate;
  • If you have a married spouse and children, then your spouse will receive the first $200,000 of your estate and the remainder will be divided equally between your children and your spouse;
  • If you have children, but no married spouse, your estate is divided equally between your children. If any of your children have died, but they have children (your grandchildren) who are living, then their children (your grandchildren) receive their parent’s share;
  • If you don’t have a married spouse, children or grandchildren, then your estate is divided equally between your parents. If only one of your parents is alive at the time of your death, that parent receives your entire estate.

It is important to note: if you die intestate, common-law spouses, other relatives, and loved ones who are not mentioned above will be left without a share of your estate. One of the benefits of having a will is that you can ensure that all of your loved ones – who are not covered by the provincial rules –  are accounted for and taken care of when you die.

Another thing to consider is that the process of administering an estate when someone dies without a will can be a complex and lengthy process with lots of red-tape and administrative hurdles. It can cause unnecessary stress for loved ones and create time-consuming and costly delays on the distribution of your estate.

How do I write a valid will in Ontario?

There are three common ways to write a will in Ontario:

  1. Writing your own will: Contrary to popular belief, you do not need a lawyer or a notary to draft a valid will in Ontario. A will is legal if it is written and signed in your own handwriting (this is known as a “holographic will”). A holographic will does not have to be signed by a witness. While it is legal to write your own holographic will, keep in mind that problems may arise if it is not clearly understood. Before you write your own will, it is a good idea to speak with a lawyer so that you fully understand your rights and obligations.
  1. Using a will kit or online service: Will kits and online drafting services are typically fill-in-the-blank templates that help you write your will. Again, these can lead to problems if the terms of your will are not clearly understood. If you have a complex estate or would like to include things that are not run-of-the-mill, it is worthwhile to speak with a lawyer.
  1. Having a lawyer draft your will: While you do not need to have a lawyer write your will in Ontario, a good wills and estates lawyer will have an in-depth understanding of the law and is able to provide you with specific legal advice. If you have a complex estate or would like to understand the tax-saving mechanisms that are available to you, it is worthwhile to speak with a lawyer about your options. A lawyer can offer you the highest-level of customization and legal advice, which will likely save you and your loved ones time and money in the long-run.

People generally do not like to think about what happens after we die, yet planning ahead is key to ensuring that your loved ones are protected and taken care of after you’re gone. Having a will and keeping it up to date is just one step that you can take to keep your family safe.

Toronto Estate Lawyers Assisting Clients With Wills 

The wills and estates lawyers at NULaw in Toronto are highly-experienced when it comes to helping clients make informed decisions about their estate planning and will writing needs.  An experienced wills and estates lawyer can help you achieve your long-term goals and objectives and plan ahead to protect yourself and your loved ones. If you would like help understanding your options and drafting your will, contact us online or at 416-481-5604 to book a consultation today.

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