If ‘making a Will’ has been one of those things on your long-term to-do list but doesn’t seem to ever become a top priority, you’re not alone; studies show that as many as 74% of Canadians don’t have an up-to-date Will, and about half of Canadians don’t have a Will at all.
I get it. Wills require you (and your family, in many cases) to think about your death which tends to be a subject most of us avoid. If you don’t think of your assets as being particularly valuable or if you assume that your family members are all reasonable and would distribute your estate equitably, it’s hard to justify the time and expense a Will might require.
However – and you knew this was coming – dying intestate (without a Will) can be more problematic than most people realize.
10 things that happen if you die without a Will in Ontario.
1. The law decides how the estate is distributed among your spouse, your parents, your children and your siblings. Your spouse inherits the entire estate if you have no children; even if you have children, your spouse may inherit everything, or the first $200,000 of your assets and the remainder is split equally among your family. If you don’t have a spouse or children, it is distributed to other relatives.
2. Common-law spouses do not automatically inherit your estate or even a portion of it. There can be some confusion over who controls your estate and how it is to be distributed if it is not made clear in a Will.
3. Your closest relative will likely be appointed as your personal representative. Someone will have to step up to the plate to administer your estate which allows them to manage and distribute it. Is your current closest relative the best judge how to administer your estate?
4. If you have no living next of kin, your entire estate goes to the Ontario government. When you hear of some lucky nephew who inherits an estate out of the blue, that’s the Ontario government after a search for some live relative of the intestate deceased. Your favourite charities have missed a chance to benefit.
5. Personal items may not be distributed as you would have liked. Your niece Jane, who had a special relationship with your mother and who was to receive your mother’s silver teapot when you died, is now dependent on the goodwill of whoever is administering your estate.
6. Possible tax savings may be lost. Smart estate planning can minimize the tax paid by your estate to increase what is available to heirs. Dying intestate means you can’t take advantage of these measures.
7. A dependent child or other relative may not be properly provided for. Unless provision is made in your Will, a dependent child who needs long-term care may not receive the financial support you were hoping to provide.
8. Someone else will decide who will become the guardian(s) of your children. If you are the primary caregiver for your minor children and you die without a Will and without the other parent around, you lose the opportunity to specify who you want to act as their guardians. The court will make the decision without your input.
9. You have no control over your funeral and burial arrangements. If your executor – who, you may remember, the court chose on your behalf – doesn’t know or doesn’t really care about your wishes, your funeral and burial arrangements will be made according to their preferences, not yours.
10. Your preferred charities may not benefit. Without a Will, the charities you hoped to support with your estate won’t receive anything.
Making a Will doesn’t have to cost a lot of money and it doesn’t even have to take a lot of time. More importantly, the cost of not doing it can be huge. So no matter how you do it – or which lawyer you engage to help you – it’s important that you make it a priority because there is a time when it’s too late to draft a Will.
Meet our new associate in our Family Law & Civil Litigation practices
We’re very pleased to announce that Sarah Mizrahi, LL.L., J.D. has joined SullivanLaw as an associate in our Civil Litigation and Family Law practice.
Sarah completed her Licentiate in Law (LL.L) and Juris Doctor (J.D.) at the University of Ottawa, and joined the Law Society of Upper Canada as a Barrister and Solicitor in 2016. Having grown up in in Ottawa – and being fully bilingual – she is both familiar with and part of the local community, which is a real asset for our eastern Ontario practice.
Her demonstrated commitment to understanding the impact of legal challenges on her clients’ wellbeing also make her a great fit for SullivanLaw. Her work with the uOttawa Ecojustic Environmental Law Clinic and pro bono work with the Ottawa District Injured Workers Group and Reach Canada is a good demonstration of her concern and her desire to help clients achieve the best resolution to their legal problems – whether through mediation, negotiation or, if required, through the courts.
It will come as no surprise to learn that we especially appreciate Sarah’s ability to write well in both French and English, which was evident during her tenure at the Revue Générale de droit de l’Université d’Ottawa (where she won an award or two). We always enjoy a well-turned phrase around the office, but more importantly, we know that clients benefit from clear, well-organized legal communication, and Sarah will help us to continue to deliver that.
Sarah is not only driven to help her clients plan ahead, but also to guide them through the often overwhelming legal process when issues do arise. In other words, she was a natural choice for SullivanLaw, and we’re glad that she’s chosen to join us.
A trusted confidante can be helpful in lots of ways
Sometimes, a client going through a separation or divorce will ask me – usually with some trepidation – if they can bring a friend or family member to a meeting. Though we’re often taught that lawyer meetings should be ‘private’, the truth is that having a second set of ears in the room, or a calming presence beside you, can be a great help in what is often a painful situation.
Separation and divorce need support systems
In almost every situation, people going through a separation or divorce need a number of supports to help them get through what is a stressful process. Financial strains can be acute; childcare and custody arrangements can be logistically challenging even when both parents are getting along reasonably well; and there are often residential, healthcare or employment-related issues that need to be sorted out. All of this can mean that both soon-to-be-ex-partners are navigating extended periods of high stress and emotional strain.
Friends, parents, family members – all of these can help to provide the additional support needed to get through the separation and divorce. Bringing one of the members of your support team to a meeting with your lawyer can be comforting – and a reminder that you don’t need to go through the process all alone.
What about confidentiality and lawyer-client privilege?
When clients bring a friend or family member with them to appointments, I explain the following. The solicitor-client relationship is between the client and the lawyer, so anything said within that relationship is privileged. However, privilege may be lost when a client brings the support to an appointment who obviously overhears and may be involved in the discussion between the client and the lawyer. The lawyer cannot ensure confidentiality in that case and privilege may be waived. At some point I may clarity the rules and allow an opportunity to speak with me one-on-one.
A rare, but more significant and difficult problem, is when the accompanying person gets over-involved in the meeting. Asking an unasked question or explaining in different words so the client understands what a lawyer says are real upsides to bringing somebody along. But potentially devastating downsides include dominating the conversation, trying to instruct or direct the lawyer, and interrupting the flow of discussion for the relevant points in raising questions of a personal concern.
For example, parents may accompany an adult child in the course of a family breakdown. Of course most parents want the best for their child – but if they become too emotionally invested in the process, or angry at the ex, they can be disruptive to the meeting. I have, on the rare occasions when this has occurred, asked the parent to wait outside for the remainder of the meeting.
Solicitor-client relationships are like other intimate relationships
They involve the discussion of personal and potentially embarrassing details, personal finances, the admission of significant errors of judgment or mistakes. Strategy and tactics, personalities and court rules, juggling emotional, financial and logistical family problems are all in a day’s work for a family law lawyer. Attending with a loved one to help means to allow that solicitor-client relationship to thrive with support, be it emotional, financial or logistical. Ask the loved one and the lawyer how you can be helpful and stepped back when it appears the helpfulness is waning.
It’s helpful if you can take emotions out of the process (as much as possible)
The other day I came across this piece on Worthy.com, and it’s stuck with me. The core of the piece is that when it comes to custody and co-parenting arrangements between former spouses, the more you can behave as though your ex is a co-worker with whom you need to accomplish specific tasks rather than someone with whom you have a complicated, non-professional past, the better the parenting thing will go.
Not a particularly complex idea – in theory. I recognize it’s much harder in practice. But if you’re in the process of a separation or divorce in which there are young children involved, this may be a helpful article.
Most people know the difference between a personal versus a professional relationship. A personal relationship is usually a friendship that includes voluntary sharing of time, knowing intimate details about one another, and is a more relaxed partnership wherein the parties can be their true, uninhibited self. A professional relationship tends to be more reserved. Information is more guarded, people tend to be on their best behavior, and the relationship is usually confined to specific times and places.