You might think making a will is too morbid. Or that you’re too young, too healthy, or have too little to your name to even bother. That’s just a mindset you’ll have to get over.
Almost everyone should have a will, says estate lawyer John Johnson, because it saves the people you’ve left behind a lot of headache and ensures your assets get split up the way you would like.
“Having a will is like a recipe,” says Johnson, from the Ottawa firm Nelligan O’Brien Payne. “You follow it and you get what you want.”
A will essentially sets out the division of your assets upon death, and names the person you’d like to execute that will and administer your estate – also known as the estate trustee.
Passing away without a will means you die intestate, which can cause complications and delays. Someone then seeking to act as the estate trustee has to apply for a certificate of appointment of estate trustee without a will, formerly called letters of administration.
But before that step, that person would also have to post a bond as security in case he or she improperly collects, administers or accounts for the deceased’s assets.
This bond is often hard to get and very expensive, says Johnson. According to the Ontario Estates Act, the amount of the bond has to be double that of the value of the estate.
Yet one of the biggest problems when you die without a will is that you can’t control who gets what. Your assets would be allocated according to the statutory formula set out in Ontario’s Succession Law Reform Act, which gives the first $200,000 to your spouse, then splits two-thirds of what’s left over evenly amongst any children you have and gives the remaining one-third to your spouse.
If you’re not married or don’t have children, priority then works its way throughout the family tree, to parents, then brothers and sisters, then nieces and nephews, all the way to any surviving next of kin – including that cousin you abhor and haven’t spoken to for fifteen years.
In other words, the intestacy provisions are blind to any personal preference you may have.
“For example, if you want to leave your estate to your friends, the statutory formula doesn’t know who your friends are,” says Johnson. The same goes for charities.
Johnson says that with baby boomers aging, he hasn’t seen an increase in people coming in to create their first will because a lot of them have already done that. Rather, he says there’s a growing trend of boomers coming into revise their will because of a second or third marriage.
It’s important to know that a marriage voids any previous will you may have drawn up.
DIY or through a lawyer?
To create a will, you have the option of going to a lawyer or taking the do-it-yourself route.
Will kits and online will services are usually the cheaper alternative. They can cost as little as $33.95 but can they be trusted?
“I’ve actually drafted clauses for those kits, so they’re legally correct,” says Johnson. “The problem is when people don’t follow the instructions correctly.”
If, for instance, the will is not properly witnessed, then it’s void and it’s like you never had one in the first place.
“Then you have to come into a lawyer’s office anyway,” Johnson says. He adds that it’s mostly people with simple estates who opt for will kits.
If you choose to go through a lawyer, it will be more expensive. Johnson’s firm charges $500, but he says he’s seen some lawyers charge as low as $150.
Estate lawyers, however, are aware of the complex nuances of estate law. They can also help to minimize certain costs that kick in during the execution of the will, such as administration and capital gains taxes.
Whether you write your own or get the help of a lawyer, Johnson says having a will gives you peace of mind.
He mentions two of his clients as an example. They’re a couple heading to Jamaica on their first holiday without their children. He says they were scared because they didn’t have wills, so they came in and drew them up, just in case.
“Frankly, it was the right thing to do, and they were certainly comforted by it,” says Johnson.