There is a saying that the only two inevitable things in life are death and taxes. With death being such an inevitability, there should be no excuse for anyone to die without having a valid will in place. Many people think that just because they are young they do not need to bother with having a will, however death can sometimes be untimely, so it’s best to always be prepared.
Why make a will?
By drafting a Will, you can provide your family and friends with specific instructions about your wishes. This can reduce the stress on your loved ones in an already difficult time. By not having a will you give up the right to choose who will inherit your assets, the amount each person will get, and when they will get it. A will also allows you to state a preference on who would be the guardian of your children in the event of your death.Â
A benefit of having a will is that you can appoint an Estate Trustee who has the power to deal with your estate instantly after your death. Without a will, no one has that authority until the court appoints someone. Having to go to court can cause long delays, resulting in unnecessary hardship and expense for your family.
What makes a will valid?
In order for a will to be deemed valid it needs to be dated, signed by the testator (the person who is writing the will) and two witnesses that do not stand to benefit from anything in the will. For example a witness can be a friend, a next-door neighbour or an employee at a law firm, should you choose to go through a lawyer.
Sometimes a will can be handwritten instead of typed. However a handwritten will, known as a holograph will, may be placed under harsher scrutiny to prove it is in fact the handwriting of the deceased. A holograph will does not need to be witnessed; however it is highly recommended. The most important part of a holograph will is that it be entirely handwritten, signed and dated.
What happens if you die without a will?
If you die without a will, you will be considered to have died intestate. In such a case, your estate will be distributed according to the law, not according to your personal wishes. If you always wanted your son to have your baseball card collection, or if you really wanted your antique car to go to your sister, unfortunately none of these bequests will be granted because it was not laid out properly in a will.
In Ontario, your property would pass to your relatives through a statutory scheme under Ontario’s Succession Law Reform Act. Under this law, the first $200,000.00 of your estate (the preferential share) will go to your surviving spouse, should you have one, and any remaining money in your estate will be divided between your surviving spouse and any children you have. if your estate does not exceed $200,000.00, then your children will be left with nothing after your spouse receives their preferential share.
Having a will is particularly important if you are not married or are in a common law relationship, or if you have very little family. Common law spouses do not have a statutory right to share in the deceased’s estate, and where there are no surviving relatives, and no will, the Government may inherit your property.
Having a legal will in place is an important safeguard for you and for your family. Don’t leave anything up to chance when it comes to your estate. Have a will in place to protect your assets and allow for your wishes to be followed after you pass away.