21 Questions: When Should I Get a Will?

In the 21 Questions series, I will do my best to pull back the curtain on a variety of legal concepts. This series is intended to help inform readers to become more knowledgeable and confident legal service consumers.

I think it’s safe to say that the last will and testament, or just “the will,” is one of the most well-known legal documents. Most of us are familiar with the term and know what a will is used for. In brief, a will lays out instructions for our estate after we die and determines how our assets will be divided. But wait a second! What exactly is “an estate”? Come to think of it, what’s an “asset”? And if I’m not rolling in the riches, does any of this even matter?

Ok, let’s work our way backwards. Firstly, yes, having a will is usually important, but it only becomes super-important (patented SM Legal law blawg law term) in certain cases. Winning the lottery, Google buying your start-up, or being featured in the God’s Plan video would all likely qualify. But other than a sudden influx of wealth, when exactly should you get a will?

There are several circumstances that I would say usually rise to the “super” level of importance. Firstly, if you have children, then having a will can ensure that your instructions for their care will be followed after you pass away. A will can lay out specific instructions for your children’s guardianship and for how your financial assets will be passed on to them.

If you own a home or any valuable property (a car, boat, etc.) you may also benefit from having a will. The will can ensure that there is no potential for disagreement amongst your next of kin or relatives over the ownership of the property after you pass on. Another circumstance that can merit getting a will is if you have dependents, such as a dependent parent, under your care.

Lastly, a will is essential if you want to decide where your money goes after you pass away. Without a will, your money and other property will be distributed under a legal scheme called “intestate succession”. In Ontario, the Succession Law Reform Act lays out the rules for anyone who dies without a will. The scheme looks at next of kin and then relatives to determine where your assets should go. If no relatives can be located, the assets go to “the Crown” (a.k.a. a government fund).

If you do decide it’s time for a will, it’s on to more questions. First though, let’s define “assets” and “estates” … and we’ll throw in “beneficiary” and “executor” for good measure. “Assets” are your collection of property, money, and basically everything you own. An “estate” is the totality of those assets after you pass away. “Beneficiaries” are anyone who gets something from the estate, and an “executor” is the person appointed by your will to give the assets to the beneficiaries. Done!

With all that in mind, let’s get to some of those questions. First off, what are your assets and where do you want them to go? Who do you want to manage your estate? Do you have charitable contributions in mind? Do you want your assets distributed equally, or on specific terms? And lastly, is there anyone in your care that your will should account for? These are all things for you to think about and answer independently, and then it's time to talk will drafting.

What exactly does the will drafting process look like? Well, that’s the topic for another blog, but if you just can’t wait to find out, send me an email – sam@smlegal.ca – and I’ll fill you in!

-Samuel Michaels

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