To bring awareness to the importance of having a Will, the Ontario Bar Association has declared November to be ‘Make a Will’ month. What a fitting way to encourage the roughly half of Canadians who don’t have Wills to see to their estate planning.
Why do so many Canadians not have Wills?
The reasons for not having a Will are many and varied. It is often on one’s ‘To Do’ list but, for one reason or another, doesn’t make its way to the top of the list.
Cost is often a factor as is a perceived inconvenience of the estate planning process and a lack of necessity or urgency. What many don’t realize is that not having a Will often ends up costing more, in terms of both time and money, than the cost of having a Will prepared in the first place.
My affairs are so simple, I don’t think I really need a Will.
Many are surprised to learn that every capable adult over the age of 18 should have a valid, up-to-date Will. Even if a person has very few assets, most people do have something, whether it be some household goods or digital assets such as a Facebook or Instagram account. Also, everyone is required to file an income tax return every year and the year of death is no exception.
An experienced estate planning professional summed it up best by saying that “[t]here is not a single estate plan that benefits from not having a Will”. Having a Will makes things significantly easier for the loved ones left behind.
What can having a Will do for me?
Having a Will is especially important if:
- you have minor children under the age of 18. In your Will you can name a guardian of your minor children for 90 days and include trusts to delay the age at which your children would receive their inheritance;
- one of your beneficiaries has a disability. In such cases, you should consider including an absolute discretionary (‘Henson’) trust to ensure any government benefits received by your beneficiary are protected. You may also want to include provisions allowing your executor to roll over your RRSPs to a beneficiary’s RDSP in order to defer tax liability which can leave more of your estate available for all of your beneficiaries;
- you have a common law spouse or step children who you wish to benefit upon your death. Only married spouses and biological or adopted children would benefit from your estate if you died intestate (without a Will);
- you are in a second marriage and wish to provide for a surviving spouse during their lifetime but ultimately benefit your children from a prior relationship. Including a spousal trust in your Will can achieve this estate planning goal;
- your assets include shares in a privately-held, Canadian-controlled corporation. Such shares can be dealt with in a Secondary Will to avoid the payment of probate fees on the value of the shares; and/or,
- you own real estate outside of Ontario. It may be appropriate to have a Will in the jurisdiction where the property is located to deal only with that property.
As you can see, there are an array of estate planning options that can be tailored to every unique situation.
