Anyone who has a spouse, common-law partner, children, or other family relationships, should consider leaving a will. You may also need a will if you have money in bank accounts, investment funds, ownership in the property, or any other assets. If you’re a private business owner, you may need a second will that covers your business income and assets.
A will is a legal document that expresses your intentions on how your assets should be distributed and who should take care of your children or others who are dependent on you after you’ve departed.
Your Will, Your Rules
You can set different rules or intentions regarding the use and distribution of your assets. For example, if you want to leave your family home to your child but want to ensure that your partner is permitted to live in that house for as long as she is alive, your estate lawyer can help you draft those terms.
Your estate lawyer can guide you on what is legally permissible and how to address your wishes in the will.
If you have minor children, it may be a good idea to name a guardian in the will. You might want to think about who will take care of your children in the absence of both parents. Keep in mind though, that guardianship under a will is temporary, for a period of 90 days. Your estate lawyer can help you understand the law and plan accordingly.
You can also create a trust under your will, for the safekeeping of any that assets you would like to leave for your children. Those assets will remain under a trust, till your children reach the appropriate age to manage those assets. Similarly, you can create a trust under your will, for payment of your children’s expenses by their guardian. For more details, refer to this article.
Dependent Parents or Other Family Members
If you care for your aging parents or other family members, you may want to create a trust under the will, to ensure the continuance of that care. Your estate lawyer can help you draft these wishes.
Save on Estate Administration Tax (Probate Fee)
A certificate of appointment of estate trustee (formerly called “probate”) is a document that is issued by the court to establish the validity of the will. If there is no will, there is still a need to apply for a certificate of appointment of estate trustee. As part of the application, the trustee or person applying to act as a trustee has to specify the value of the deceased’s assets. When applying for this certificate, the applicant has to pay an estate certificate fee or tax to the court, based on the dollar value of the deceased person’s estate.
The estate certificate tax can quickly add up in Ontario. Since January 2020, if the estate is valued at $50,000 or less, there is no tax. For estates valued at more than $50,000, there is a tax of $15 for each $1,000 (after the initial $50,000) with no upper limit. So, on assets worth $1,000,000 (which can be a combination of your real property, bank accounts, various plans, etc), your estate trustee can end up paying $14,250 as an estate certificate tax.
Your estate lawyer can help you structure your assets in ways that can potentially reduce this estate certificate (probate) tax. It is important to remember that if you do not leave a will or leave an ill-planned will, your estate trustee or heirs may end up paying a significant amount of probate fee.
Private Business Owners
Private business owners may need a separate will to cover their business assets and income. As state above, estate certificate tax is significant in Ontario and if business assets are included in the estate value, the estate administration fee (probate fee) may increase. Ontario permits individuals to create multiple wills and private business owners should take advantage of the same. Your estate lawyer can help you plan for your business assets. For more details, refer to this article.
Another important issue in this day and age is the concept of modern assets. With respect to fertility, if you have frozen your eggs, seed (for men) or embryos, you may want to mention your wishes with regard to the same. If you have donated your embryos, you need to be mindful of the definition of “children” in your document.
Some other modern assets to consider are digital media, youtube channel or any other social media sites. If you are planning to publish a youtube channel or similar social media channels that may potentially bring you income in the future, you should create a specific succession plan. Your estate lawyer can provide advice on these issues.
Hopefully, the issues discussed above will help you decide whether you need a will and whether you need to spend time with an estate lawyer to plan your estate and draft your documents.
For more details on this topic, visit the Ontario Ministry of Attorney General’s website.
As a gentle reminder, nothing in this article should be construed as legal advice. Every case is different and you should contact an expert to get proper guidance. If you need legal advice on wills or powers of attorney, please contact us.