Consider Completing a Will

• Do I have assets that I would like to give to benefit particular persons after my death?
  
  
• Do I have items of particular sentimental or historical value (such as referenced to my family's history) that I would like to see passed on and treasured by a particular person, after my death?
  
  
• Do I have children or others who depend on me, requiring care or financial assistance after my death?
  
  
• Are there particular charities or other organizations that I would like to benefit after my death?
  
  
• Am I concerned that the values by which I have lived my life will not be respected by other with access to my assets after my death?
  
  
• Am I concerned as to how my assets will be dealt with, after my death, should my surviving spouse or partner enter into another relationship?
  
  
• Do I want to control the fees of the person who is administering my estate, after my death?
  
  
• If I am named as the Trustee of someone else's estate, do I want to name someone to take my place in the event of my death?

If you have answered “yes” to any one of the foregoing questions, the best way to advance your interests is by will. It is a principal means by which people are able to control the orderly distribution of estate assets in a manner that benefits those intended to be benefited, while at the same time controlling costs.

My property is held jointly, and I have benefited those whom I wish to benefit by naming them as beneficiaries of my life insurance, RRSP and pension benefits. How can a will add anything here?

If you die without a will, your estranged spouse or partner could end up managing your estate and receiving the majority of your unallocated estate assets—both occurrences which would normally be contrary to your intentions. This is because, without a will, the law recognizes your estranged spouse or partner as still having a legal relationship to you, until such relationship is formally terminated by divorce or other order or agreement. For example, given the way common-law relationships have been granted equivalencies to marriage in terms of support claims and obligations, the departure of a common law spouse does not necessarily mean that he or she has automatically forfeited any rights to claim against your estate, particularly if you don't formally act to formalize your own intentions by will. In one recent case, a mother wished to administer the estate of her son, who had died suddenly of a heart attack, and without a will. The son had been separated from his wife for a period of approximately five years, though the parties were not divorced. The estranged spouse, with justification in law, challenged the mother's right to administer her son's estate, because the estranged spouse wanted to administer the estate for her own benefit. The fact that the parties had rarely communicated in the five years leading up to the son's death was not relevant. What WAS relevant was that the son had died, married, and without a will in which he could have named anyone other than his estranged spouse as his Estate Trustee. Having not done so, Ontario law grants a preference to the surviving spouse to act as the Estate Trustee.

If you die without a will, your surviving spouse or partner could obtain the majority of your estate, absolutely, rather than for life. This is an important consideration where you have assets that you want to see benefit your children, but are uncertain as to the circumstances of your spouse or partner after your death. The simultaneous execution of wills by both spouses or partners will enable the needs of children to be addressed more precisely and in a manner that the ultimate benefit of your assets passes to your children. One way to accomplish this is to transfer assets by will to your spouse or partner, for life, and then to your children absolutely—or on such conditional terms as you consider appropriate to include.

It is rare that absolutely all of your property will be considered to be held jointly; a will enables these assets to be distributed in accordance with your wishes. Furthermore, with respect to those assets of particular sentimental or historical value, the absence of a will means that such assets may be simply junked by whomever is left with care and control of them. This results in the all-too-common sidewalk scene of piles of garbage bags of usable items and personal treasures.

Often the beneficiary of jointly-held assets or of life insurance or pension-related benefits is a surviving spouse or partner. The assumption in these arrangements is that the surviving spouse will continue on in life for a significant period. This doesn't always happen, given the frequency of occurrence of auto and other accidents or disasters where both spouses or partners die at the same time. In such circumstances, a will would have accomplished much, since alternative beneficiaries are normally named in a will to benefit from the estate should your spouse or partner not survive you. Without a will, others with far more distant relationships to you may seek to share in your assets, contrary to what you would have liked.

A will enables you to benefit those whom you believe need the greatest assistance, and to control how that assistance is administered. It is often very unwise to designate such persons as beneficiaries of life insurance and other benefits, since your knowledge of their circumstances in life tells you that the funds will not be spent in a manner that provides the greatest and longest benefit. In such circumstances, it is better for them to have your estate designated as the beneficiary of life insurance and pension benefits, and to then control the distribution of such benefits through your will. One example of such control relates to funds that you intend to be used to provide educational assistance to a specific beneficiary. You can make the benefit conditional on continued full-time attendance at an educational institution. Another example relates to funds that you wish to be used to provide support to a beneficiary with developmental or psychological challenges. You can structure the benefit in such a way that such funds provide assistance to such person for a lengthy period after your death, while at the same time enabling such person to preserve entitlement to social assistance support, as needed.

You can only benefit a preferred charity, religious, social or educational organization by will. None of these organizations have a right to claim against your estate, should you die without a will. Many people find that, upon reflection, there are particular organizations or individuals who have had foundational impacts on their lives. A will enables you to dedicate your assets to the support of activities which you believe had particularly positive effects on your own life.