Having a Will is one of the most important things you can do for yourself and your loved ones. Your Will can protect your spouse, children, and assets, and dictate your precise wishes for how you would like your estate handled upon your death.
Alternatively, dying without a Will can lead to many unintended consequences.
Earlier this month, we wrote about how an individual's estate is distributed on death under an intestacy (when he or she dies without a Will) and some of the resulting tax implications. This article will continue to explore some of the major consequences of dying without a Will.
Appointment of Executors and Trustees
If you die without a Will, no one is authorized to take any action to administer your estate until they are formally appointed by the court. An application must be made to the court for a "Certificate of Appointment of Estate Trustee without a Will." According to the Estates Act, the order of priority for acting as estate trustee (where there is no Will) is as follows:
- grandchildren or other direct descendants
- closest next-of-kin
In order for a person with lower priority to act as estate trustee, those with a higher priority must renounce their entitlement to act as estate trustee and consent to the other person acting. Depending on who is applying to act as estate trustee, this may become a costly, time-consuming, and contentious process.
A properly-drafted Will appoints the estate trustee(s), typically with alternates, ensuring that your estate is administered by the people, or the trust company, which you believe are best suited for the role.
Estate Administration Bond
If you die without a Will, the court often requires that the person seeking to be appointed as estate trustee post an estate administration bond. The bond serves as a promise to the court, with a surety, that the estate trustee will be honest in performing their duties in the administration of the estate, such as by making the payments of all debts of the deceased, and in distributing the property of the estate to the beneficiaries.
Applying for an administration bond is cumbersome, as is the process to seek an order that a bond is not required. The latter application requires the estate trustee to satisfy the court that the protection afforded by a bond to creditors and beneficiaries of the estate is not required or will otherwise be met. It is unpredictable when such an application will be granted.
In a Will, you can dispense with the requirement for your estate trustee(s) to post an administration bond, thereby eliminating the costly and time-consuming court process.
In a Will, you can specify who you would like to be the guardian of your minor children. While this provision is not permanent, it is generally binding for the first 90 days following death. Within that time, an application to the court for permanent guardianship is made. Courts generally give great weight to guardianship appointments in a Will.
If you die without a Will, a judge will use their best judgment in deciding who should become the guardian of the deceased's minor children, immediately and permanently. This could result in custody battles among family members and could have long-lasting and unintended repercussions for everyone involved, including your children.
Lack of Ability to Create Special Trusts
Estate planning provides the opportunity to set up a variety of special trusts, which serve to accomplish various goals. Such goals include:
- Creating a spousal trust to care for your current spouse and protect the interests of those beneficiaries that you wish to benefit following your surviving spouse's death;
- Creating spendthrift trusts to protect a beneficiary's inheritance where they lack the ability to manage it themselves;
- Establishing a Henson trust to benefit disabled beneficiaries by protecting their inheritance as well as their right to collect government benefits and entitlements;
- Setting up a trust for minor beneficiaries, to remove the requirement for a minor's inheritance to be paid into court to be managed by the Office of the Children's Lawyer; and
- Using a trust to postpone the distribution of gifts to beneficiaries (i.e., beneficiaries over the age of 18 who would otherwise receive their inheritance immediately and minors who would become otherwise entitled to their inheritance at age 18).
If you die without a Will, you miss out on these estate planning opportunities.
Common-Law Spouses do not Automatically Inherit
If you die without a Will, your common-law spouse does not automatically inherit any portion of your estate. To inherit under your estate, the common-law spouse will have to initiate a claim against the estate, either by filing a dependency claim or a claim for unjust enrichment. This can be a costly, time-consuming, and contentious proceeding.
Having a Will ensures that your estate will be administered in accordance with your wishes and minimizes the requirement for court involvement, which can be financially and emotionally costly as well as time-consuming for your loved ones. Get one and keep it up-to-date.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.