Why do a Will?
Who inherits if you don’t have a Will?
In Ontario, the first $200,000 of the value of your estate will go to your surviving spouse; the balance is then divided among your spouse and children. Portions for children under eighteen will probably be paid into Court.
If you don’t have children and if you aren’t married, all will go to your parents, whom failing, your brothers and sisters.
Who administers your estate if there is no Will?
The Court will appoint an “Administrator” of your estate, or (as it is now called) an “Estate Trustee without a Will”. Normally, the Court appoints someone whom the survivors agree is best able to administer the estate. If the survivors cannot agree, then the Court will likely appoint your spouse, whom failing, your child, parent, or sibling.
In most cases, and before being appointed, your Trustee will be required to post a bond with the Court, at twice the estimated value of your estate.
Your Trustee sells your assets and pays your debts, including taxes and funeral expenses. The residue, after all debts are paid, goes to your beneficiaries.
Your Trustee must account to the beneficiaries, for all receipts and disbursements. Also, he or she is entitled to compensation, usually between 2% and 6% of the value of your estate.
Some of your survivors may have special needs, which is best provided for by Will: Should there be a special fund for a child or dependant? Is someone in the family ill or incapable of receiving the funds directly—if so, who should manage their funds?
Some of your assets are special, to be planned for by Will: Is there someone who is to take over the family business, who needs special financing? Should your home be sold, or should someone by permitted to live there for a period of time. Are there any other special assets, like a cottage?
Who will look after your children?
In Ontario, the paramount concern is the child’s best interest as determined by the Court. You can appoint someone to have custody or be the guardian of your child’s property, but it is only effective for 90 days following your death.
However, your expression of your child’s best interest, as documented in your Will, can have a very important effect on the Court. It tells the Judge what you think—often it prevents any dispute or misunderstanding within your family.
Consider including a clause about who is to look after the children, especially if they are young.