There are many different ways a lawyer can draft a will as there is no set form/precedent that is used to draft the document. Some of the main things that will be included in every will in Ontario will be to appoint an executor, list the legal names of all beneficiaries, appoint a guardian if children are under the age of majority and estate trustee’s (hold the gifts to children until certain age). Some wills will have a list of all assets owned but this is not necessary. When a will is drafted the assets we currently own will change, one might change their financial institution, buy an investment property or a variety of other things. By having the specific items listed in a will that will must be changed whenever those assets change. By not having assets listed in the will, you can include a written list of the assets and include that where the will is kept to inform the executor of your personal assets. This page of written assets is not to be signed and is not part of the will and is used only as a reference to the executor. By doing this you can change or add new assets as they change without paying to re-draft a will.
What happens if you die without a will in Ontario
If you die without a will in Ontario it is called Intestate. What this means is that you have not left a will of your last wishes and a standardized procedure will take place. A lot of people think that if you die without a will all the assets go to the government this is not true. For example if you have a family with 3 kids and one should die the following procedure will take place.
1. All Debts are to paid off
2. The surviving spouse is entitled to a preferential share, the first $200,000.
3. The residue of the estate will then be divided between the spouse and the kids. The spouse will get 1/3 of the estate and the rest will be divided between the 3 children.
Appointing an Executor
An executor is the person that you appoint in your will to carry out your last wishes and distribute your estate accordingly. At the time of death all sorts of assets will make up your “estate” such as bank accounts, house, investment properties, jewelry, cash, cars or any item you own at the time of death. The general things that an executor does will be to obtain the original copy of your will (it is advised to inform the executor of how to access this document). The executor will then compose a list of all your assets that will either be in or included with the will and then apply to probate, where applicable. Once those steps are complete the executor will then have to pay out all outstanding debts owed before being able to distribute the remanding property set out by your last wishes in the will. Appointing someone as an executor is a huge responsibility and should be someone that you trust who is willing to take on the role as your executor. An executor must be of the age of majority and should be someone who is financially capable of dealing with such amount of property/money.
The effects of Divorce/Marriage on a will in Ontario
Having a divorce take place after having a will drafted has a big change on ones will. Although it does not revoke the will the will read as if the spouse has pre-deceased the other spouse. What this means is any gift or percentage left to the spouse before divorce will go into the residue of the estate. This rule only applies to divorce not separation. The only way around this law is if the will states what is to happen in the event of divorce. By having a will and then getting married has a different effect then divorce. Marriage will automatically revoke the will unless it was made in contemplation or marriage. This means that if the will was drafting with the expectance of a marriage and drafted to that reason then the will shall be deemed acceptable, if not, the will is revoked and deemed void.
What if your spouse does not leave you a fair share of the estate?
The Family Law Act contains a different remedy a spouse can seek if they feel they have not been given what they feel entitled to. What a spouse can do in a situation like this is to apply for Right of Election. What this does is allows the spouse to take a division of the NFP (Net Family Property) instead of taking the gifts left in the will. This allows the spouse to take their share of what has been acquired in the duration of the marriage. This does not include gifts of inheritance, settlement funds or life insurance proceeds that were acquired during the marriage. If you decide to take under the Family Law Act you will not be entitled to any of the specified gifts or amounts that were left for you in the will. A spouse has 6 months from the date of death to file if the date is missed it is assumed the spouse has taken under the will.