The importance of having a will and understanding estate laws becomes significant when you have a family to guard from the uncertainty of life. A valid will made before your wedding date may be invalidated unless it was made in anticipation of your marriage. Our wills and estate lawyers recommend keeping your will updated so that it reflects major changes in your life, like marriage or having a child.
Divorce, on the other hand, does alter how a pre-existing valid will is interpreted and treated. Former spouses may nevertheless be able to make a claim against the estate. To be safe, your will needs to be updated once your marital status changes.
Who has Rights to be a Part of your Will?
Guardianship and Minors
If you have minor children, you can name a guardian and how your estate will care for them after you die. A court’s final guardianship decision also considers this choice, as specified in a valid will. You can also designate a property guardian or trustee to manage the wealth you leave behind for the benefit of your children until they reach adulthood or become independent.
Common Law vs. Married Spouses
A common-law spouse does not have the same rights to share in the assets of the deceased spouse as a married spouse would. Unless there is a valid will in place specifying otherwise, a common-law spouse may end up with no property after the passing of his or her partner.
When there is no valid will in place, a surviving married spouse in the Province of Ontario is entitled to the first $350,000.00 of the deceased spouse’s estate assets, with the remainder of the estate being split in equal shares between the child(ren) and the surviving spouse.
Special Considerations in Asset Division
Pursuant to section 4(2) of the Family Law Act, property other than a matrimonial home, which was acquired by gift or inheritance from a third person after the date of the marriage, is excluded from the spouse’s net family property at separation.
However, income from such property may be included in the spouse’s net family property unless the donor or testator expressly states in his or her will that it is to be excluded.
What is the role of the Office of the Public Guardian and Trustee (OPGT)?
The OPGT can become involved if the executor appointed to administer the estate has died, become incapable, or is unwilling to serve, in which case the OPGT will apply to be appointed estate trustee. It can also have a role where there are no known next-of-kin to the deceased living in the Province of Ontario, or the next-of-kin are minors or mentally incapable adults. Hence, they basically protect the future interest of potential heirs of an estate.
The Disadvantages of Dying without a Will!
Dying without a will leads to several complications: estate division and/or distribution is done in accordance with a provincial distribution formula, which may not align with your personal wishes, potentially leading to unintended beneficiaries. The process of settling estate affairs becomes more costly and time-consuming.
Specific instructions in your will, such as severing a joint tenancy, ensure that your surviving spouse and child(ren) share in the asset. Therefore, the absence of a will leaves your family with unclear directives, resulting in a lengthy probate process and associated fees.
Furthermore, dying without a will means you lose control over who manages your estate. The court will appoint an administrator who may not manage your assets as you would have preferred, possibly leading to family disputes or mismanagement of your estate.
How can our Wills and Estate Lawyers help you?
Leaving things to chance does not work in life; why would it be any different upon death? Our wills and estate lawyers understand this very well! They can assist you with all your estate planning needs, so you do not have to rely on chance. Begin with your wills and estate planning today and call us at 905-405-0199 for a 15-minute free consultation.
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