Ontario Will: Frequently Asked Questions
What is a will?
A will is a legal document that allows you to determine how your estate is dealt with after you die. For example, your will can address the following matters:
- Who will ensure that your debts are paid and assets distributed (known as the ‘executor’)
- Who will be the guardians of your minor children (subject to court approval)
- Who will get your assets
A will is an important part of a broader concept of estate planning. A will is most effective if it is one tool used to organize your affairs to meet your present and future needs, as well as those of your loved ones.
Do I need a will?
Having a will makes the process of paying your debts and distributing your assets much easier for your survivors. It is also a way of ensuring, to the extent possible, that your assets are distributed in accordance with your wishes.
What happens to my assets if I die without a will?
If you die without a will, someone will need to apply to the court to be named an administrator of your estate. Once an administrator is named, they will be responsible for paying your debts and distributing your assets. Since you died without a will, the law determines who gets your assets. In Ontario, the law can lead to unexpected results: for example, common-law spouses are not entitled to any part of each other’s estate without a will.
Is my will invalidated if I am separated from my spouse or get a divorce?
A breakdown of a marriage does not invalidate a will, but in the case of a divorce, may cause certain gifts and appointments to be revoked.
What happens to my will if I get married?
Unless your will was prepared in contemplation of your marriage, any will you had before you were married is void.
What are some advantages of having a lawyer prepare my will?
A will is only one piece of your estate plan, and consulting with a lawyer can help to develop a comprehensive estate plan. For example, if you are a small business owner, a lawyer can help you to develop a succession plan, which may include taking steps now to minimize taxes and other costs at the time of your death.
A will needs to meet certain formal requirements to be valid. Having a lawyer prepare your will ensures that your will is a legally binding document.
A lawyer can also assist you in ensuring that your instructions are clear so that your executor is able to understand your intentions when they are administering your will. In addition, a lawyer can raise questions or issues that should be addressed in your will or overall estate plan that you may not have considered.
A lawyer can also prepare powers of attorney as part of your estate plan. A power of attorney is a document that names an alternate person to make decisions on your behalf with respect to your property (assets you own, bank accounts, etc.), and with respect to your health care decisions. Powers of attorney are equally as important as preparing your will since they deal with who will be making decisions for you during your lifetime if you are incapable of doing so.
If you have questions or require further information about wills and estate planning, please contact us and we will put you in touch with a member of our Taxation team.