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Everyone Has a Will

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Commercial Real Estate Agent with RE/MAX West Realty Inc., Brokerage (Toronto)

Everyone Has a Will

 





By Brian Madigan LL.B.

Everyone has a Will. The problem is that most people don't know where it is. They have never seen it, they never signed it and they don't know what it says.

The Ontario Government has written out a generic Will for everyone. It's set out in the Succession Law Reform Act. So for those of you who have never taken the time to sign one of your own, let's have a look at what it says when it comes to dividing up your property:

1) the first $ 200,000 to my spouse,

2) the balance, ALL to my spouse, (except if I have a child),

3) one child, then ½ to my child and ½ to my spouse, (except if I have more than one child)

4) 2/3 to my children to be shared equally, and 1/3 to my spouse,

5) all to my parents (if I have no spouse and no children),

6) all to my brothers and sisters (if no one in 5),

7) all to my nieces and nephews (if no one in 6),

8) all to my next of kin (if no one in 7), and

9) all my estate to the Province of Ontario (if no one in 8).

There are a couple of additional rules that you need to know. Children may represent their deceased parents as long as the parent was a child, brother or sister of the person who died intestate. Half blood is the same as whole blood. Adopted children are included, as are unknown and undetermined relatives (as long as the connection can be proved by DNA). There is no such thing as "in-laws" or "godchildren". These people are just strangers, and if there is an intention to include them, they must be mentioned in a Will.

You will also appreciate that it may be difficult to determine just precisely who is included in the term "next-of-kin".

All in all, the generic Will seems to be reasonably fair. The only real problem is that nobody really ever likes it completely. Everyone wants to change it, even just a little bit.

Also, there is nothing in there about any kind of tax planning or particular financial management opportunities. And, there is nothing about the guardianship of your children. So, if you have children, don't just leave them up for grabs, sit down and write out your intentions when it comes to guardianship.

After children, the next important issue might be your house. It's not necessarily going to your spouse! Who gets it? Is that fine with you? What about your parents' home? As time marches on, preparing your own Will might be something to think about.

Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEsateSource.com

Comments (9)

Candice A. Donofrio
Next Wave RE Investments LLC Bullhead City AZ Commercial RE Broker - Fort Mohave, AZ
928-201-4BHC (4242) call/text

Great post, Brian.

Arizona USA is the same; no one dies without a will.

I like mine better than theirs...:)

 

Nov 28, 2009 09:22 AM
Brian Madigan
RE/MAX West Realty Inc., Brokerage (Toronto) - Toronto, ON
LL.B., Broker

Candice,

It makes a lot of sense to write your own.

Brian

Nov 28, 2009 10:51 AM
Janice Ankrett
Burlington, ON
Staging Professional

Brian, Great information. thanks

Nov 28, 2009 11:27 AM
Carra Riley & Declan Kenyon
Brokers Guild Cherry Creek Ltd - Westminster, CO
Helping people Transition at all ages!

Brian,

Make sense to use an attorney to create your own will instead of living with what the government is going to give you. 

Nov 28, 2009 02:55 PM
Terry Chenier
Homelife Glenayre Realty - Mission, BC

Brian,

I have one and I review it every few years. Just in case my situation changes.

Nov 28, 2009 04:22 PM
FN LN
Toronto, ON

Hi Brian - Since it's early in the morning, I thought I'd have a bit of fun.  It was very kind of the Ontario government to create the will so that all of our property, if we do not have our own will, passes to various members of your (i.e. Brian's) family. :)  (The joys of reading first and second person in the same post.  What do you expect from a person who once assembled about 12 large binders for a discovery in a court case that ultimately got appealed and then was discussed for a few years (and probably still is from time to time) in professional technical seminars?)

On a more serious note, it is even more important that American citizens living in Ontario (and in other Canadian provinces and territories) write a will due to potentially significant negative tax implications relating to US estate tax, gift tax, foreign beneficiaries, the Canada-US tax treaty and more.  In such cases, these people should consult legal and tax professionals who are very familiar with relevant Canadian AND American laws.

Nov 28, 2009 04:25 PM
Brian Madigan
RE/MAX West Realty Inc., Brokerage (Toronto) - Toronto, ON
LL.B., Broker

Janice, Carra and Terry,

One of the least expensive and mosr valuable items you can obtain from a lawyer is a Will.

And, Terry you are right on the mark about reviewing it every three years, or even more frequently if something changes.

Marc,

Excellent point about the tax implications for someone who travels across the border, has employment or other income in another jurisdiction.

And, that must have been quite a court case!!!

Brian

 

Nov 29, 2009 02:03 AM
Kathy Clulow
Uxbridge, ON
Trusted For Experience - Respected For Results

Brian - I see number 9 is the biggest issue as we all know how well the government uses / spends our money. There are so many worthwhile cause that would do a lot more with it than the government.

Nov 29, 2009 02:55 AM
Brian Madigan
RE/MAX West Realty Inc., Brokerage (Toronto) - Toronto, ON
LL.B., Broker

Kathy,

Absolutely, at the very worst, pick some charity that you like.

Brian

Nov 29, 2009 03:12 AM