Where There's a Will

Legally Speaking

When we are young, most of us don't concern ourselves about our mortality. We worry about being able to buy a home, raise a family, increase our earnings and insure our lives.

As we grow older, we start to adjust to new realities ? disabling illness, crippling accidents and the reality of death.

Preparing a will can therefore be a very stressful experience. We want to ensure that all those close to us are provided for. The client looks to his lawyer not just to resolve a legal problem, but for support and guidance as well.

If you don't make a will it is likely that the things you leave behind won't necessarily go to the people you want them to go to, leading to disputes over who gets what.

The Succession Law Reform Act in Ontario ensures that the surviving spouse gets the entire estate, if there are no surviving direct relatives. If there are children or grandchildren the spouse will be awarded the first $75000.00 of the estate, as well as an additional amount which varies depending on how many children are involved.

These steps will help you plan your will:

  • Estimate what you have and what you owe.
  • Make notes of your assets ?your house, pension, savings plans, insurance, investments, and so forth. Is the title to the house in your name or in your spouse's name, or both?
  • Who are the beneficiaries named in the insurance and savings plans? Your estate? Your spouse? What are the approximate values?

If you are a partner or shareholder in a private business are there any arrangements with respect to selling your interest to others in the business when you retire or die? Have you loaned money to family members?

Make notes of what you owe: the mortgage on your house, bank loans, private loans. Do you have assets that will be taxed when sold or realized, such as investments or a second residence, a pension or an RRSP and how much will the tax be? Decide who will receive your estate. If you are married, the two of you may choose a will that leaves everything to the survivor; and, if you have children, on the death of the survivor, to the children.

If your children are too young to receive their share, you can direct the executor to hold each child's share in a trust fund until they reach an age that you select.

If you have several children and each child's share may not be enough to get the child through school provide in your will that what is left for the children will be kept in a single fund until the youngest reaches an age that you choose.

In the meantime, the executor can use the fund for the children, unequally if necessary. Then when the youngest reaches that age, what is left is divided among the children.

On the other hand, if a child's share will be substantial, it can be directed to be given in stages, part at one age and the balance at a later age.

Decide who will carry out the terms of your will ? who will be the executor. An executor's duty is to gather the assets of the estate and pay all debts and taxes and distribute what is left as directed in the will. Choosing an executor is as important as deciding how the estate is to be divided.