The first important message is that you do not make a will for your immediate benefit, but for that of your loved ones. When you are deceased you will only figuratively turn in your grave when a family quarrel arises over what could have been spelled out by your will. Your family, on the other hand, may face very real struggles when left without any guidance as to your intentions.

There are of course laws in place that determines what happens to your belongings if you die intestate, that is, without a will. However, that does not mean that disagreements are pre-empted, or that your wishes are given effect. The following are just three examples of issues that can arise when an individual dies without a will.

Executor appointment

If you die intestate, you forego the opportunity to appoint an executor. The executor is in charge of distributing your assets in accordance with your wishes expressed in your will. Instead, someone first needs to apply to the Ontario Superior Court of Justice to take on this role. This leads to a delay in the distribution of the deceased person’s assets, along with increased legal costs. Under a will that properly appoints an executor, the executor has the power to take action immediately, and even where an application is required, the process is less complex.

Not everyone can be appointed the executor of a will. The law sets out an order of preference, ranking first the married spouse or conjugal partner who lived with the deceased immediately before death. Next are the children of the deceased, then the grandchildren, if no children have survived the deceased, and if no grandchild is alive, the great-grandchildren are next. It follows the father and mother of the deceased, but only if there are no descendants, and if the parents have predeceased the deceased person, their siblings are next in rank and so forth.

If a person having a prior right to be the executor does not want to take on this role, their consent is still required for a person lower in rank to be appointed the executor. If several persons are standing in the same degree of kinship and more than one is applying for the executor role, the court can select one of them at its discretion.

Appointing an executor in one’s will circumvents many potential issues that can arise from a disagreement among family members who should be the executor of the will. If the deceased thought that it would be his or her, business partner or life-long friend who is best suited for the role, there is little chance that this wish can be accommodated in the absence of a will nominating this person as the executor.

Another important consideration in the appointment of the executor is that this person will also manage any trust(s), and monies, for minor beneficiaries in the will.

Succession Laws

If the deceased person dies intestate and was not married to their partner, this partner has no statutory entitlement with respect to the deceased property. The Succession Law Reform Act’s (SLRA) definition of ‘spouse’ only captures married spouses.

Under the SLRA, a married spouse is entitled to receive the entire estate, if there are no children. However, if there are children, the surviving spouse will receive a preferential share of $200,000 of the deceased assets, if he or she died intestate. The remainder of the estate, if any, will be distributed equally between the spouse and one child, and if there is more than one child, the spouse receives one-third of the remainder, and the children receive the rest in equal shares.

A common-law spouse, again, is not entitled to the preferential share, or in fact to any share of the deceased’s assets upon death. This result may be quite the opposite of what the deceased person would have wanted.

Disabilities protection – Henson trust

Another scenario where having a will in place is most important is that of a disabled dependant surviving the deceased. A will would often provide for a so-called Henson trust. A Henson trust is a discretionary trust designed to benefit a disabled individual in such a manner as to protect that disabled individual’s entitlement to collect means-tested government benefits, such as benefits payable under the Ontario Disability Support Program. The trustee will have full discretion over the allocation of income and capital to the disabled beneficiary.

Without a trust in place for the disabled, it would fall to the court to administer the deceased’s assets for the benefit of the disabled individual. It may be in the interest of the deceased to have a say in who will take on this important responsibility, and not leave it to strangers. Also, if the gift is given outright to a disabled individual, this could disqualify him or her from collecting said government benefits.

If you need advice relating to the drafting of your will, contact Vanessa Romanino at 905-668-4486 ext 246 or vanessa@durhamlawyer.ca.

 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”