KPA Lawyers - July 27, 2018
Many people believe that if they die without a Will, the law will ensure that their assets go to their loved ones. However, the rules dealing with how assets are distributed where a person has no Will are often not what you would hope they are. Many people also believe that if they do not own much, and do not have a large net worth, that their estate will be easy to administer. However, even if your assets are modest, having a Will can save loved ones a lot of time, money and stress. Below are some specific reasons as to why you should get a Will.
1) Appoint a trusted Executor
When a person passes away, there a lot of loose ends that need to be tied up – funerals, vehicles, bank accounts, insurance, dependant’s needs, properties and businesses must be managed. Inevitably, the show must go on. An Executor is the person appointed to manage these affairs after your death. Although a person can apply to be an Executor where there is no Will, the process can be a time-consuming, complex and expensive. Appointing a dependable Executor in a Will is a necessary and important time- and cost-saving decision.
2) Lower Income Taxes Payable
A beneficiary will often be required to pay taxes on property they inherit. In the process of creating a Will, you are able to minimize the tax consequences of gifting or of an inheritance. No estate planning means no tax planning.
3) Lower Probate Fees Assessed
Estates over a certain value must be probated – meaning, a statement of the assets, debts and properties of the Estate must be filed with the local court house, and the court must approve the Will as valid. In Ontario the fees are $250 for the first $50,000 of the Estate and $15 for each additional $1,000 with no upper limit. When an Estate is probated without a Will, every single asset of the Estate must be included for probate purposes. This means everything, from the house, furniture and vehicles, to jewelry, computers, and down to the dishes and cutlery, must be included. The larger the value of the Estate,the larger the probate fees will be. However, there are simple legal ways to avoid paying large probate fees, and in some cases, possibly avoid probate fees altogether. Taking certain steps will assist in this planning – and a well-drafted Will and a good Estate Plan are the primary step. Don’t make your loved ones give up more than they have to.
4) Appoint a trusted Guardian for minor children
You will want to ensure your children are taken care of by the right person. Uncertainty and time-consuming fighting is the last thing you want for your children in a time of struggle. By appointing a Guardian in a Will, you ensure that your children have certainty and are cared for by someone you know and trust.
5) Provide financial stability for your minor children
If minor or dependant parties do have an appointed Guardian, the Ontario Public Guardian and Trustee will become involved in managing your children’s financial affairs. This means that without a Will, the government will be deciding your children’s financial future.
6) Make your burial preferences clear
Have you discussed with your loved ones what you want your burial arrangements to be? Are you certain they all know? What if your loved ones do not all agree on what should be done? Why create uncertainty. A properly drafted Will will make your preferences clear and unambiguous.
7) Make Arrangements for your Business
If you own, co-own or operate a business, you will want the business to keep running according to your vision and dreams. The last thing you want is uncertainty in a time of turmoil. Having a Will in place will ensure that if you die, you provide the certainty that someone you trust can inherit and continue to run your company.
8) Prevent unintended beneficiaries
The laws of Ontario provide for distribution of an estate on intestacy (or, when a person dies without a will). If you are not aware of the rules of intestacy, your Estate may go to someone unexpected or unwanted, or an undeserving relative.
9) Avoid Disinheriting a Family Member
Family structures have evolved far ahead of the current laws in Ontario. While the courts are catching up and have started to recognize the many shapes and sizes of families, statues in place do not account for everyone. Without a Will, people you may include in your family may not inherit what you believe they should. For example, despite the rising number of common-law partnerships, common-law spouses are not entitled to share in their spouses’ estate. Without a Will, your partner may not receive their share of your Estate, even if you wishes for them to receive everything. A second example is without adopted children or blended families. The rules respecting adopted children or children from a spouse’s previous marriage do no always follow logic or intention. This means that without a Will, you may end up disinheriting your own child.
10) Avoid Unnecessary Legal Fees
Whether or not you create a Will, a person must be designated as an Estate Trustee to manage your affairs. Most institutions, such as banks, insurance companies and car dealerships will not interact with an Estate Trustee unless there is a Will, or unless and until that person receives a Certificate of Appointment as an Estate Trustee. Obtaining an Estate Trustee Certificate with a Will is a straightforward and simple process. Obtaining an Estate Trustee Certificate without a Will is a far more complicated process, and can cost thousands of dollars in legal fees. Often, a simple estate is worth less than the cost of obtaining a certificate, but a bank or insurance company will not release the money without a certificate, and so parts of the estate are lost. Having a Will avoids potential losses and saves money.
11) Planning is the Least Expensive Option
There are dozens of details to consider when drafting a Will. Planning avoids uncertainty and burdensome fees and taxes. The cost of a Will is far less than the cost of managing a Will-less Estate. To ensure you have an effective Will and a comprehensive Estate Plan, enlist the help of a reliable professional today.