Why Should You Draft a Will?
By: Elham Hadian, Articling Student at Heydarian Law
Contrary to popular belief dying intestate (without a will) does not mean that your property
passes to the State (or government). The Succession Law Reform Act (SLRA) provides a scheme
of distribution in favour of a “surviving spouse” and/or “surviving issues” and/or other relatives.
What happens if you don’t have a will? Under the SLRA, if you die without a will in Ontario
your estate will be divided as follows:
- Spouse, but no children – your estate will go to your spouse entirely
- Spouse and one child – your spouse receives the first $200,000 of your estate
(preferential share) and the remainder will be divided equally between your spouse
and child - Spouse and more than one child – your spouse receives the first $200,000 of your
estate and one-third of the remainder of your estate. Two-thirds of the remainder is
divided equally among your children. - No spouse, but you have children – your estate is divided among your children
equally - No spouse and no children – your estate is divided between your parents equally or
where there is one remaining parent it goes entirely to them. - No spouse, no children, and no parents – If your parents are no longer alive, your
estate will be divided equally between your brothers and sisters. - No spouse, no children, no parents, and no brothers or sisters – your estate is divided
among your nieces and nephews equally. - No spouse, no children, no parents, no brothers or sisters, and no nieces or nephews –
your estate is divided among your next of kin (closest living blood relatives) of equal
degree equally. - Where you do not have any living blood relatives and no one qualifies under the
above rules as your next of kin, your property/estate goes to the provincial
government.
Why then should you or anyone you know create a will? There are many reasons to draft a
will, here are some common ones:
1. One of the key reasons for creating a will is that an individual who dies intestate cannot
benefit from tax planning. For example, such an individual is unable to benefit from the
capital gain tax rollover. Additionally, these individuals cannot safeguard against estate
administrative taxes. Creating a Will allows an individual to plan their property and
affairs in the most tax beneficial manner and allows an individual to have control over
who manages their estate once they die.
2. The second reason why individuals should create a will is if a minor would be entitled to
receive an interest in the estate. Without a will, the interest of the minor has to paid to the
Superior Court of Justice, where the Office of Children’s Lawyer will manage the minor's
property until he/she reaches the age of majority. For this reason, an individual who
intends to leave assets to a minor (such as a child or grandchild) should create a will.
Creating a will gives an individual control over who gets custody and guardianship of the
minor. Without a will, the process of getting custody of the minor or control over their
property is both time consuming and expensive. To avoid spending more money and
time, during an already emotional time, individuals should consider drafting a will.
3. Third, if you wish to leave part of your estate to anyone other than your immediate family
you should draft a will as the SLRA does not provide for division among non-blood
relatives other than your spouse. Unfortunately, in Ontario, common law spouses are also
not automatically entitled to benefit from intestacy. The rules of intestacy under the SLRA
only apply to legally married couples. The only way that a common law partner/spouse
can guarantee that their spouse/partner will be entitled to receive an interest in their estate
is to create a will, naming them as a beneficiary.
For estate planning packages, excellent advice on how to create a will, and to ensure that your
estate is taken care of effectively, you can schedule a free estate planning consultation with
one of our lawyers at Heydarian Law by calling: (1800) 582-4529.
