Roughly 65% of Canadians do not have a will. Often times, clients mistakenly assume that assets automatically transfer to their loved ones or, worse, they assume the right to assets where there is no will. Dying without a will, or intestate, simply means that the division of assets is left up to the Government. Consequently, potential beneficiaries have no say in the rules of division and, in fact, the deceased also has no say in the rules of division.

The expectations of the spouse, relatives, friends, and the deceased are irrelevant where there is no will, notwithstanding specific exceptions such as joint tenancy.

The government, through the Succession Law Reform Act, dictates that the following groups may take assets:

1. Spouse. The definition of spouse does not include common-law relationships and/or cohabitation. It mostly refers to those that are legally married.
2. Issue. This means all lineal descendants such as children, great children, etc.
3. Lineal ascendants and collaterals.

Although your loved ones are included in the rules of division, matters are further complicated when it comes to the share taken by each group, family law implications for spouses, and much more.

Consider this:

• If you are a son/daughter, not having a will most likely results in your parents not receiving any assets.
• If you have relatives that you do not wish to provide for, not having a will may achieve the opposite or make it more difficult and expensive for your intended beneficiaries to obtain assets.
• If you have a spouse to whom you are legally married, not having a will gives the spouse solely the choice of receiving the same assets she would if you were divorced. The law is intrinsically unanticipated by most Canadians when it comes to spouses.
• If you are in a relationship and are not legally married, not having a will may put your spouse in a vicarious position and complicate the process by which both your spouse and minor children receive assets.
• If you are a spouse, child, or relative and know that your loved one wants you to be a beneficiary, not having a will may most likely result in you not receiving anything or a much lesser share, as well as increase expenses.
• If you are a parent concerned with potential family law claims that a child’s spouse may have on what you leave behind, not having a will means that you do not have a say in the future of your assets
• If you have many assets, not knowing the distinction between a will and alternatives to a will may severely increase taxes.

Now, also consider the situation where you assume that a jointly-held account with your child will automatically belong to your child. This is not so simple. There are certain factors that the court will look at to determine whether a gratuitous transfer between a parent and an adult child should be considered as a resulting trust, meaning that the child must return the account to the estate. To reduce probate taxes and ensure that your child benefits as you like, a will is an essential step in fulfilling your intention.

Another wrong assumption among Canadians is that having a will won’t make a difference. Canadians with few family members believe that they do not require a will because everything is transferred to their spouse and children as per their desires. However, the rules of division are not desire-based and have other severe implications for you and your family.

So then….when should you consider having a will? If you have any assets, you should consider having a will.

**The content on this website is not legal advice.