Many people believe that a Will is only necessary later in life or after accumulating significant wealth. In reality, every adult in Ontario should consider having a properly prepared Will. A Will allows a person to decide who will manage their estate, who will receive their assets, and how their affairs should be handled after death. It can provide important direction where there are children, real estate, business interests, or family members who may require support.

Where a person dies without a Will, they are considered to have died “intestate.” In that situation, Ontario law determines how the Estate is distributed. Those rules may not reflect the person’s wishes or family circumstances.

For example, many people assume that everything will automatically pass to their spouse. That is not always the case. Where a person dies without a Will and is survived by a legally married spouse and children, the spouse may not receive the entire Estate. Under Ontario’s intestacy laws, the surviving married spouse is generally entitled to a preferential share, which is currently $350,000 for deaths occurring on or after March 1, 2021. If the Estate is worth more than the preferential share, the balance may be divided between the spouse and the children, depending on the number of children.

Family circumstances can make intestacy even more complicated. Issues may arise where there are minor children, children from a previous relationship, separated spouses, or family members who depended on the deceased for support. It is also important to understand that an unmarried partner does not inherit as a spouse under Ontario’s intestacy laws, regardless of the length of the relationship. A surviving partner may have other possible rights or claims, such as dependent support, survivor benefits, pension entitlements, or claims based on contributions made during the relationship. However, those are separate from an inheritance under intestacy and may require further legal steps, which can add cost, delay, and stress for the family.

Consider a situation where two people may live together for many years, share expenses, raise a family, and build a life together without being legally married. If one partner dies without a Will and important assets are held only in that person’s name, the surviving partner does not inherit those assets as a spouse under Ontario’s intestacy laws. Instead, the surviving partner may need to seek advice about whether another claim is available. This can create uncertainty at a time when the family is already dealing with a loss.

A Will also allows a person to appoint an Estate Trustee, formerly referred to as an Executor, to administer the Estate. This includes dealing with assets and liabilities, financial institutions, government agencies, tax matters, and distributions to Beneficiaries. Without a Will, a Court Application, which could be contested by parties having an interest, will be required to appoint someone as the Estate Trustee with the authority to deal with Estate assets and liabilities.

For parents of minor children, a Will is especially important. It allows a parent to nominate a person as Legal Guardian to care for the minor children if both parents die. While the Court retains authority to make decisions based on the best interests of the children, a clear nomination in the parents Wills can provide meaningful guidance to the Court and interested family members and friends during a difficult time.

A Will should also be reviewed following a major life event, including marriage, separation, the birth of a child, the purchase or sale of a home, a change in financial circumstances, or the death of an Estate Trustee or Beneficiary. A properly prepared Will cannot eliminate every Estate issue, but it can reduce uncertainty, delay, cost, and family conflict. More importantly, it provides loved ones with the clear direction, preferences and intentions of the deceased when they may need it most.

At Kormans LLP, we assist clients with Wills and Powers of Attorney. If a Will has not been prepared, or if an existing Will no longer reflects current circumstances, our team can help.

*Disclaimer: This article is for general information only and does not constitute legal advice. We do not  provide tax advice or Estate litigation advice however we provide some advice on basic Estate Planning principles and uncontested Estate Administration matters.

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