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Importance of preparing will be emphasized

Focus on Trusts and Estates Law
|Written By Marg. Bruineman
Importance of preparing will be emphasized
Marcia Green says if a person dies without a will, family members may find themselves saddled with a burden they may not be prepared or willing to take on.

When a person dies without a will, a complicated legal process can ensue, say lawyers.

The process following a death intestate can be complicated, costly and could attract claims from those who may not typically be included in the will, they add.

Family members then find themselves saddled with a burden they may not be prepared or willing to take on and are reticent to take on the role, says Marcia Green, an Ottawa lawyer who does estate litigation and estate administration with Nelligan O’Brien Payne LLP.

“If there has been discord among the family members before the death, it’s difficult to find anybody who would like to accept that job after the death,” she says.

There are occasions when no one is interested in taking on that burden,  which includes menial tasks such as cleaning out the home of personal belongings as well as the responsibility of having to deal with the financial concerns of the deceased.

That includes going through bank accounts, determining outstanding debts and dealing with outstanding tax liabilities, ensuring the deceased did the previous tax return in order to do the estate tax returns, says Green.

That it could take 18 months to two years to administer an estate is a further turnoff for family members, she adds.

An option is for the family members to hire a financial institution or trust company to take it on, and those costs would be paid for through the estate, she says.

“It makes it difficult, and it costs the estate much more when the person died intestate because you need to find someone to take up the job and they might want a fee for the work they might be doing,” she says.

Once that hurdle is cleared, the legislation spells out who gets what with priorities placed on the spouse and children. If the spousal relationship is a common-law one, however, that spouse gets nothing and everything goes to the children.

That’s where’s where litigation is likely, says Green.

“This common-law spouse will then have to bring a dependent’s support claim against the estate” and they’ll have to make a case that they were supported before death and then demonstrate how much money they would need, says Green.

But that’s dependent on there being enough money in the estate to allocate funds to the common-law spouse and also to continue to provide a bequest to the children.

The complications continue when there are children under the age of 18, adds Toronto-based wills and estates lawyer Lisa Laredo.

“If you die without a will and you have minor children, then you lose the ability to appoint the guardian,” she says. “You would be losing the power to state in writing who you want to take care of the kids.”

Instead, the state gets the power and, with the involvement of the Office of the Children’s Lawyer, determines what happens to the children, she says.

And when it comes to the assets, the children get the portion prescribed by the legislation in one lump sum, she says, adding that the absence of a will means there’s no ability to provide specific instructions on how any money should be distributed and when.

“You are losing the ability to decide how your assets will be held for your children and how they will be distributed is huge, because no 18-year-old I’d ever met is responsible to manage money like that. And people don’t usually manage money if they haven’t earned it,” says Laredo. “It just causes so much confusion for the people you leave behind.”

According to legislation, if someone dies without a will and there is a spouse, everything goes to the spouse, says Laredo.

“There’s absolutely no option about how your estate is to be divided. It all falls within the Succession Law Reform Act,” she says. “The statutory formula for distributing the assets of an estate when there’s no will can’t be varied. You also lose the ability for any of your intended wishes.” 

If there is a spouse as well as children, the first $200,000 goes to the spouse, she says. If the estate is worth more than $200,000, the rest goes to the children, but the spouse is entitled to one-third of the remainder, she adds. But if there’s no spouse and only children, she says, the legislation determines that it’s all divided equally among the children. In a situation in which there is no spouse and no children, the estate is divided between the parent, the siblings, nephews, nieces and next of kin. And if there are no survivors, Laredo says, everything goes to the government.

“Sometimes, people don’t want to have wills because they don’t think they have anything. Some people don’t want to have a will because they think it’s taboo to talk about death. Some people are just downright irresponsible and lazy because they talked about getting a will but never got around to it. And some people just don’t see the need for a will and so they die and they leave their families in complete shambles, it’s a complete disaster,” says Laredo.

In January, the Angus Reid Institute released results of an online poll that surveyed 1,516 Canadians, concluding that 51 per cent of Canadians don’t have a will.

It found that those aged 55 and older are nearly four times more likely to have wills than those between the ages of 18 and 34 and twice as likely as those between the ages of 35 and 54. Higher earners also report having a will.

By leaving control of who gets what to someone else, the deceased individual has given up an important right that may impact family members in ways that were never intended, says Matthew Urback, a civil litigator and estates lawyer with Shibley Righton LLP in Toronto.

When there’s a will, it is stamped by the court as being the official certified copy, and then the instructions within the will are followed, says Urback.

When there’s not a will, however, the survivor’s assets are essentially in the court’s hands and if there is a family member willing to represent the estate by acting as the estate trustee or executor, they must apply to the court for a ‘certificate of appointment of estate trustee without a will’ to get the authority to act on behalf of the estate, he says.

If there isn’t an obvious executor, says Urback, the statute does lay it out, depending upon the personal situation and status of the deceased. The result may end up surprising the individual who ends up falling into the role if there was never a conversation about what would happen, he says.

That law-imposed process, however, may not be what the deceased person had intended, and it means they have forfeited an important right, he adds.

An additional detrimental aspect, he says, is that if there’s no will, there’s likely no estate planning and that means the individual didn’t take advantage of any tax-saving opportunities, likely leaving less for beneficiaries.

“People should be entitled to deal with their assets in death as they are in life — basically, however they want. But if you don’t have a will, you’re not taking advantage of that right. That means someone else is going to make that decision for you,” says Urback.


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