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Do You Need a Will? 

Losing a loved one is difficult; however, dying without a will often makes it that much more difficult for the friends and family you leave behind. A will is a vital part of any estate plan and ensures your assets are distributed in the way you want and by the people you want. However, if you do not have a will, decisions regarding your estate will be made for you. 

What happens if I don’t have a will? 

Without a will, no one has the authority to act as estate trustee without Court appointment. Such appointment is called a Certificate of Appointment of Estate Trustee or, more commonly, Probate. The Estates Act provides that a spouse is first entitled to be granted Probate. In the event there is no spouse, the next-of-kin are then entitled. When applying for Probate, the estate will be taxed based on the value of the estate as of date of death. 

Furthermore, without a Will, the Succession Law Reform Act outlines the heirs of the estate. A spouse is entitled to the preferential share, being the first $350,000.00. Assets beyond that are divided between the spouse and surviving children. In the event there is no spouse, the children of the deceased are first entitled as heirs. If there is no spouse or children, the estate is distributed among the next-of-kin. 

What are the benefits of having a will? 

By having a will, you are able to exert more control over your estate and better provide for the people and things that mean the most to you. 

When selecting your estate trustee, you can choose from your spouse, children, other family or friends, a trust company, or professional advisor. 

You can leave gifts of specific assets or amounts of money, or a share of your overall estate to anyone of your choosing including friends, family, or charities. This is particularly important for anyone who is separated but not divorced, in a common-law relationship, in a blended family, or even estranged from family. 

Without a will, beneficiaries will receive their inheritance once they turn 18, but with a will you can set up trusts for any beneficiary to control the age(s) and circumstances in which they are able to receive their inheritance. This may be important for anyone who wishes to benefit minors or persons with disabilities or simply wishes to help preserve the estate to maximize the benefit to the beneficiaries. 

A will also allows you to direct your wishes regarding funeral arrangements, the appointment of a temporary guardian for your children, or what you want to happen to your beloved pets. 

Although some wills still require Probate, there is a better chance of avoiding Probate and the associated taxes when you have a will. 

If you want to know more about how you can benefit from a will, please contact a member of our department to schedule an appointment. 

This article was written by Wills, Estates and Trusts Lawyers Jennifer Butkus and Jillian Berry.

Nov 01, 2022