This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
For most, the month of November is associated with winter’s first snowfall, moustaches and the culmination of another yearlong anticipation for the release of Christmas cups at Starbucks and Tim Horton’s.
For wills and estate lawyers however, solicitors and litigators alike, November is associated with only one thing: wills. This is because November is “Make a Will Month” in Ontario.
Make a Will Month is a public awareness campaign championed across Ontario by the Ontario Bar Association (OBA).
Throughout November, the OBA and its members strive to educate the public about the importance of making wills and powers of attorney, as well as the value of making such estate planning tools with the assistance of a lawyer. OBA member volunteers present free legal information sessions throughout Ontario at public libraries and community centres.
The content of these seminars is intended for general information purposes only and not to be relied upon as legal advice. That well-known disclaimer aside, the seminars are valuable for anyone who wants to learn, or who needs a refresher, on what happens if a person dies without a will in Ontario, the elements of a will and the importance and possible consequences of granting powers of attorney.
As a summary refresher, in the event of an intestacy or partial intestacy in Ontario, one’s property is subject to distribution in accordance with the provisions of the Succession Law Reform Act (SLRA). The terms for distribution in an intestacy or partial intestacy can be complicated depending on the makeup of a deceased’s familial circumstances. The SLRA directs that distribution is to be made in accordance with a legislated hierarchy, which changes if a deceased had a spouse (not including a common law spouse) or a spouse and children. If the deceased did not have a spouse, children, surviving parents, siblings, nieces or nephews, then their estate will be divided among their next of kin. Only in the event that a deceased has no surviving next of kin will their estate escheat to the Crown.
The terms for an intestacy in the SLRA must be read and considered together with those provisions in the act for dependant’s support and the applicable provisions under the Family Law Act (FLA) to form a comprehensive legislative scheme.
Another benefit of making a will is that it allows for a person to select a trusted administrator to act as their estate trustee without posting security. On an intestacy, an application must be made to the court for a person to be appointed as an estate administrator in accordance with the requirements under the Rules of Civil Procedure and with the necessary security required under the Estates Act.
Additionally, the benefits of making a will can be to minimize taxes (including estate administration tax). Also, to control the timing and amounts for distribution of the capital and/or income of the assets of an estate by the inclusion of a trust in a will, which is often used for the benefit of minors and persons with disabilities.
If your clients don’t yet have an estate plan in place, November is the time for them to learn about the value of making an estate plan. It’s also the time for your clients to review any estate plans which they may have already made. It is important to inform your clients that an estate plan should be reviewed on a regular basis to ensure that it matches their intentions and personal and familial circumstances.
It is also important to remind your clients of the value of making an estate plan with a wills and estates lawyer. The investment in a professionally prepared estate plan is arguably the most valuable investment that a person can make, since it is designed to protect all other investments through the ultimate transfer of wealth upon death.
The OBA publishes a “Find-a-Lawyer Database” on its website, where members of the public can search and discover wills and estates lawyers in their communities.
Lawyers at Whaley Estate Litigation, including myself, are regular annual presenters at OBA Make a Will Month information seminars. This year, Daniel Paperny of Whaley Estate Litigation presented at Ontario HIV Treatment Network. Follow this link to find out where to attend one of the OBA’s free legal information seminars for Make a Will Month.