Why Make a Will?

By Jacquelyn Johnson

What is a Will?

A Will is a document that leaves instructions about what you want done with your personal possessions and property after you die. Having a Will ensures your wishes will be carried out and your loved ones are provided for. When you don’t have a Will, the court process can get especially complicated, as your estate is automatically distributed in accordance with Part II of the Succession Law Reform Act, which may not be what you intended, and may not necessarily be in the best interests of your loved ones.

Who can make a will?

The requirements for a legal Will in Ontario are:

• The Will must be created by you, of sound mind, and over the age of 18.
• The Will must be made for you - the testator (you cannot make a will for someone else!).
• You must sign the document in the presence of two valid witnesses.
  • The two witnesses cannot be a beneficiary or executor of your estate. This means the witnesses cannot be people who will receive something from your estate when you die or be the person administering your estate.
• Your Will must be signed in wet ink and stored as a physical copy. Your witnesses must sign the last page of your Will together with you.

What is in a Will?

Appointing an Executor

Determining the individual responsible for managing your estate is an important part of creating a Will. By drafting a Will, you assume the role of the "testator" and you can designate an "executor." The executor's role is to oversee the settlement of all your affairs. In the absence of a Will, the court must appoint an administrator to administer your estate, a process that can be protracted, costly, and potentially contentious for your loved ones.

Choosing Beneficiaries

As the testator, you have the authority to name beneficiaries of particular assets or gifts. Furthermore, you can also allocate beneficiaries for any assets that you haven't explicitly identified, which constitutes the "residue", or the rest, of your estate. Your designated executor, when administering your estate, is responsible for distributing the stated gifts and the residue to your beneficiaries.

It's important to note that a Will can also serve the purpose of ensuring that certain individuals do not inherit anything. For instance, you might wish to prevent an estranged sibling from receiving any inheritance.

Emergency Planning for Minor Children and Dependents

Your Will serves as a clear directive to both your loved ones and the legal system, that you wish to name certain individuals as guardians of your minor children. While this decision should be approached with the utmost care and consideration, it is imperative to formalize it in writing, thus averting potential conflicts that might arise in the absence of a pre-established plan.

Gifts or Donations

Making a charitable bequest is great way to leave a lasting legacy. A charitable bequest, or a gift made through your Will, allows you to leave a gift to support charitable causes that you are passionate about. Such a bequest can take the form of a financial donation or the transfer of specific assets. When done properly, charitable bequests can benefit both the donor and the causes they care about. Planning your donations in advance can also ensure beneficial tax outcomes for your estate. 

Conclusion

A Will is the cornerstone of your estate plan. Do not let procrastination get the best of you. Once you pass away (or lose mental capacity), the opportunity to make a Will is gone. Having a Will prevents additional grief for your family members during an already emotional time.

Engaging in a conversation with a lawyer is vital to guarantee that all your desires are properly addressed and that the Will is legally sound. Our team of legal professionals specializing in Wills and Estates at SorbaraLAW can provide guidance and support throughout the process of crafting and finalizing your Will.