As we come to the end of the year, most people start to make their list of resolutions and goals that they hope to accomplish in the year ahead. One thing we hope you consider adding to your list is making a Will if you don’t already have one. Since death can be unpredictable, we want to remind you of the consequences of not preparing a Will, which essentially amounts to having no control over what happens to your estate after you die. 

Distribution of Your Estate

When someone dies without a Will, intestacy laws under the Succession Law Reform Act (the “SLRA”) dictate the distribution of the estate. This means that, depending on which family members are alive at the time of death, they will benefit in an established priority. This could result in two main possibilities – that people you intended to benefit could be left out, and others may get more than you would have otherwise wanted. By preparing a Will, you can explicitly state which assets, whether a specific item or sum of money, you want a named beneficiary to receive. If you wish to gift money to a minor, you may need to consider setting up a testamentary trust. You can also choose to donate to charity if that is important to you.

Additonally, to clarify any misconceptions that may exist: if you are married, your spouse doesn’t automatically receive your entire estate. As mentioned above, there is a hierarchy in the SLRA that must be followed and your spouse might only be allocated a portion of your estate. It is also important to note that, if you are in a common-law relationship, your partner is not eligible to receive spousal entitlements under the SLRA on an intestacy or to elect under the Family Law Act for equalization purposes and therefore may end up with nothing. They may be limited to a claim for dependant support – which would require them to sue your estate. 

Administration of Your Estate

Your spouse or partner cannot direct how your estate should be distributed once you are gone as well. Neither can your children. The court will step in and appoint the person responsible for administering your estate. While your family or friends could apply to be appointed, the decision is ultimately the court’s. In a Will, you can name an Estate Trustee – a person you trust to take care of your affairs after your death. The Estate Trustee will then make decisions regarding which assets to sell to pay debts or keep and give away.

Minor Children

In the unique situation that there is a common accident and both you and your spouse die, your minor children could be left to the mercy of the court. By executing a Will, parents can appoint a trusted person to be the guardian of their children and dictate who will take care of them in their absence. You can also consider the setting up of trusts to secure the future of your children. Having your affairs in order can ensure a peace of mind. 

In conclusion, a Will does not need to be fancy or expensive; however, the preparation of one is an invaluable investment into the future of your family and can influence their lives well after you are gone.

So, with only a few days left until we celebrate the beginning of a New Year, we encourage you to take this fresh start as an opportunity to do things differently! 

Have a wonderful day,

Suzana Popovic-Montag & Ekroop Sekhon