July 13th, 2017
Every adult should have a will. Surprisingly, many people don’t have an estate plan, a will or powers of attorney. Why do so many people fail to plan for what is an inevitable part of life?
Even though estate planning involves conversations about death and incapacity, estate planning doesn’t have to be morbid. On the contrary, estate planning can be life-affirming by forcing you to take a closer look at the people you most care about in your life and to ensure you deal with your estate to benefit them.
Estate planning also makes life a lot easier for our loved ones when we die. The little time it takes to meet with a lawyer to plan your estate can save your spouse, children, and other beneficiaries time, effort, money and, possibly litigation.
If you die without a will in Ontario, the Succession Law Reform Act controls how your estate will be divided:
- if you have a spouse and no children, your estate goes to your spouse
- if you have a spouse and one child, your spouse gets the first $200,000 of your estate and the remainder of your estate is divided equally between your spouse and your child
- if you have a spouse and more than one child, your spouse gets the first $200,000 of your estate and one-third of the rest. Two-thirds of the remainder is divided equally among your children.
- if you have no spouse, then your estate is divided among your children equally
- if you have no spouse and no children, then your estate goes to your parents. If your parents aren’t alive, it goes to your brothers and sisters, divided among them equally.
- if you have no spouse, no children, no parents and no brothers or sisters, then your estate is divided among your nieces and nephews equally.
- if you have no spouse, no children, no parents, no brothers or sisters and no nieces or nephews, then your estate is divided among your next of kin of equal degree equally.
- if no one qualifies under these rules as your next of kin, your estate is said to “escheat” to the Crown. This means that it goes to the provincial government.
To put it simply, if you don’t have a will, you lose control over who gets how much of your estate and when.
Without a will, you also lose control over who can manage your estate. The role of an estate trustee (or executor) is a very important one. An estate trustee’s responsibilities include:
- making funeral arrangements, if required.
- locating all of the estate’s assets.
- selling assets that need to be sold, including listing and selling real estate after having it appraised; selling stocks, bonds and other securities; valuing and disposing of personal belongings.
- locating family members who may be heirs to the estate.
- filing all necessary income tax returns and obtain an Income Tax Clearance from the Canada Revenue Agency, confirming that all income tax has been paid.
- determining and paying the estate’s debts, income taxes and legal and accounting expenses.
- paying the heirs as set out in the will.
- reporting to the beneficiaries, listing all money received, debts and expenses paid, fees charged, and details of how the estate was distributed.
With a will, you can appoint an estate trustee you trust to be competent to take on these responsibilities and who will administer your estate according to your wishes.
Keep in mind that estate planning is about the legacy you leave behind: will it be one of conflict, confusion and cost, or one that leaves a lasting and positive impact on the life of your loved ones?