Whether you are married, single, common-law, a joint-venturer, etc. – you will want to have a will professionally drafted to suit your needs as soon as possible. There are many half-truths and myths surrounding estates and the status of your property after death. Clients often tell me that they have heard from someone that all of your assets are transferred to the government after your death or that there is an estate tax that will consume most of the estate. Most puzzling for some clients is the status of their real property. They frequently ask me; “Does my spouse get to keep the house?” or “Can my kids inherit my property?” These are all valid questions.
In Ontario, the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “Act“) is the legislation that allows you to transmit your wealth after your pass if your will is found to be valid. If a person passes without a will (known as “intestate”), Part II of the Act becomes effective and the estate is distributed based on a preferential spousal share (currently $200,000.00) with the residue (should there be a residue) being distributed according to a formula between the spouse and children.
A note – the Act only distributes the spousal share to married spouses and children.
Five important reasons you need a will.
i. Married couples are typically registered as “joint tenants”. The main feature of this form of ownership is something called “right to survivorship”. This takes me back to 1L Property class, but in so many words, the right to survivorship allows you and your spouse to simultaneously hold 100% of the equity in matrimonial property. If one spouse passes on, the surviving spouse automatically assumes the deceased spouses share.
But what if you want your share to go to someone other than your spouse? A child or a parent are often popular options. Alternative options such as these should be discussed with your lawyer as they could potentially open you estate to probate or potentially invalidate your will.
ii. Re-married spouses often have differing opinions on whom they want to transmit their wealth too. Often, re-married spouses will want to be registered as tenants in common. In a tenancy in common (as opposed to joint tenants) – the deceased spouses’ share will be left to their estate, where it will then be distributed based on the testamentary intent of their will.
iii. If you don’t have a will and you pass on (intestate), your home and estate will be subject to statutory application during probate. The Part II of the Act does not reflect your specific intent and how you want your estate to be distributed, it is simply the default scheme in Ontario for those that did not plan ahead or wish to make a will.
iv. You and your spouse can ensure that your intent on transmission of your wealth after you is appropriately preserved by visiting a lawyer and having a will or mirror wills drafted.
v. Leaving a valid and professionally drafted will makes the lives of your loved ones significantly easier after you pass away.
If you are interested in booking a consultation and discussing your will, contact my office:
405 Britannia Road East, Unit 101B
Mississauga, Ontario L4Z3E6
Fax : 866-320-6008