1. What happens when you don't have a will?

Distribution of your estate will be governed by legislation: the Succession Law Reform Act:

  • Spouse gets preferential share in the amount of the first $200,000 in value of the estate; then the residue is divided between the spouse and surviving children, as follows:
    • If only one child, then the residue is divided 50-50
    • If more than one child, then spouse is entitled to one third, and the remaining two-thirds is divided equally among the children
  • If there is no spouse and no children, then in the order of priority to:
    • the surviving parents;
    • to siblings;
    • nieces and nephews
    • "next-of-kin" as defined in the Succession Law Reform Act

2. What can you do in your will?

Appoint an executor – the executor will be the person carrying out your wishes; they may also appoint professional trustees (who can be lawyers or professional trust companies for more onerous work of administering an estate);

  • Has authority to file final tax return on behalf of the deceased;
  • Usually will have authority to pay funeral costs;
  • Intention is to endow executor with broad powers and authorities, especially with smaller estates where there are relatively few assets (real estate, bank accounts)

Appoint someone to act as minor children's guardian

  • You have right to appoint a guardian of your child's person (a caretaker), but that guardian does not automatically have right to be guardian of the child's property; this must be done by application to the court; your wishes are taken into consideration
  • The alternative is to appoint someone a trustee of the assets – to manage the assets and to pay out funds as required – usually only when you have more substantial assets and you have concerns about the guardian's abilities to manage the assets

Prior to divvying up your assets, you can designate beneficiaries for your RRSPs, mutual funds, any kinds of annuities where you can designate a beneficiary, and insurance policies (this is also best done with advice from a financial adviser)

  • This has the benefit of avoiding probate fees ("estate administration tax") on the value of those assets, as they no longer flow into your estate; but rather flow to the beneficiaries directly.

If there are grown beneficiaries with spouses, you can ensure the estate only passes to the beneficiary and not their spouse, and if the spouses divorce or separate, you can exclude your gift from calculation of net family property.

3. What can't you do in your will?

  • You can only indicate your wishes about what to do with your body; you could ask for at ten-gun salute ceremony, but if your executor doesn't want to do so, he or she is not bound.
  • You can't ensure that all your beneficiaries will be happy with your division – that is, you can't prevent your beneficiaries from hiring a lawyer to contest; but you can provide that if a beneficiary contests a provision that they are not to receive under the will if they contest your division. The best way is to have collaborative meetings ahead of time, so that loved ones have no surprises – especially with executors.
  • Can't prevent your spouse from taking under the Family Law Act rather than under the will.
  • Under the Family Law Act – spouse can calculate the share they can take according to calculation of net family property, as if you had divorced; and take half of same
  • Usually, this can be prevented by entering into a marriage contract, which can bind both parties even after death of one spouse.
  • A "Living Will" is not a will, but rather a power of attorney for personal care, in order to appoint an attorney to make decisions regarding personal and medical care in the event that you are incapacitated.

Contact Us

Call us at 289-301-1211 or email us to set up an appointment to learn more about wills and end-of-life planning. Don't leave your family to deal with uncertainty at the worst possible time.