Page 14 - GTA Real Estate Magazine July 2021

A Will, Why have it, and what is a Living Will?
Safiyya Vankalwala
Barrister and Solicitor Korman & Company Professional Corporation Barristers & Solicitors 721 Queen Street East, Toronto, Ontario, M4M 1H1 Tel: 416-465-4232 x 802 Fax: 416-465-6912 www.kormancompany.com
If I don’t have a Will, the government gets my money? Does all my money go to the
government if I die without
a Will? !”. This is one of the most popular questions I get. When I started practicing law almost 12 years ago, I found this question really surprising. I would think to myself “why would anyone ask that?”. Over time, I realized that different countries have different laws, and the estate laws in some countries are not as favorable as they are in Canada. So what does happen when one dies intestate (without a Will) in Ontario?
The Succession Law Reform Act
dictates how the money is distributed, and it might not be the way you want it but it does go to your next of kin. Let us take the fictional example of “Jill” who has died without a Will in the following scenarios :
• If Jill is legally married and has no children, her spouse is entitled to her assets.
• If Jill is legally married with children, the first $200,000 of the estate is given to her spouse and anything above this is shared between her spouse and children.
• If she is not legally married but she has children, then the children share equally in her estate.
• If she is not legally married nor has children (or surviving grandchildren), then the assets are split equally
between her living parents, and if there are no surviving parents, Jill’s estate is divided equally between her siblings, and so forth.
Also keep in mind that there are laws to determine a spouse, dependant (this may include a common-law spouse) and/or a child's rights to the assets of the deceased when the deceased has not provided for them adequately in the Will, but otherwise, the Will allows you to dictate to whom your assets will go to and how.
Each estate needs to be looked at individually for what the deceased owned, how it was owned (i.e. jointly or individually) and if any assets had a beneficiary designation (i.e. the beneficiary of an RRSP).
The Things That Parents Worry About
From a parent’s perspective, a Will becomes important to establish a trust that controls the flow of money by directing when the money is to be paid to the child (i.e. 1/3 at the age of 21, 1/3 at 25 years and the rest at 30 years of age). After all, do you really want your minor children to receive your “hard earned” money all at the age of 18? As a parent myself, the way I see handing over all the money at the relatively young age of 18 is like letting a kid eat all the treats in their Halloween trick-o-treating bag the very same night. While that is my personal opinion, in my experience, most
parents share this view. By establishing a trust in the Will, the funds are managed by the named trustee, and you may leave your trustee direction as to when the funds can be used for the benefit of the child while the funds are held in trust, such as for their health and education.
Since we are on the topic of children and providing for them through a Will, let’s touch on the topic of custody of your minor child after your death. e Children Law Reform Act provides that a parent has the right to appoint someone to have custody of their minor child in their Will. e custody appointment in the Will only lasts for 90 days after it takes effect, and then the appointed person must apply for permanent custody. Ultimately though, the decision of whether or not the applicant will be granted permanent custody, will be determined by the court.
T
hat being said, the court will
consider many factors including the child’s wishes and relationship with the person applying for custody. Sometimes a parent will say something to the effect of, “why does the court get to decide ? It should be my choice; they’re my kid”. It is important to remember that your child is their own person and has their own rights. Also keep in mind that a parent’s stated wishes are important as it will serve as persuasive evidence. The courts ultimate goal is to determine what is in the best interest of the child, so all the
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