Disclaimer: This article is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
It has been said that estate planning is a gift to those you love, and we wholeheartedly agree. We know that no one wants to think about the end of our lives. However, we cannot overstate the importance of having these conversations and making these plans.
Too often, we have seen the pain and grief of a loss compounded by the stress and overwhelm of poor estate planning.
Planning for the end of your life means taking into consideration your unique circumstances. Our lives are all different, and the plans for our estates must reflect that.
This article outlines, at a very high level, how different factors influence your estate planning. Of course, we would be happy to speak further about your situation. You can book a consultation here [link] for more information.
Estate Planning in Ontario
Estate planning in Ontario is governed primarily by the Succession Law Reform Act (“SLRA”). Its last major update was in the 1970s; however, further changes have received Royal Assent, with some key amendments expected to become law in January 2022. We will discuss those changes in detail in a future article.
Congratulations! You got married – we wish you many happy years together.
However, under Ontario’s current legislation, if you had a will before you got married, then your entire will has now been revoked unless you made it with marriage in mind. What does that mean for you? Your will may have had provisions protecting your children or donating to causes that you’re passionate about, but these are no longer valid.
If you recently got married or will be married shortly, it is worthwhile to look at your will. Fortunately, this is one of the changes being made to the SLRA. As of January 2022, marriage will not revoke a will, aligning Ontario with many other provinces.
In a common-law relationship
While you may have been with your partner longer than most married couples, Ontario’s legislation does not grant the same rights to common-law partners. Suppose you die intestate [definition: a person who died without having made a will]. Your common-law partner does not have a claim to your estate unless one of the following claims are filed: filing a dependency claim or filing a claim for unjust enrichment, both of which involve litigation (i.e. a lawsuit).
Of course, this is an unnecessary strain and expense. It is much more prudent and practical to have a will in place that recognizes your partner and provides for them in the event of your death.
As the SLRA currently stands, a separated spouse still stands to inherit a portion of the deceased spouse’s estate. That means that your home could automatically pass to your estranged spouse, instead of to your children or even a new common-law partner.
However, as of January 2022, those portions of the SLRA will be amended. The legislation defines situations that deem a couple to be separated. In those instances, a surviving spouse would be treated the same as if the couple was divorced.
One key reason to have estate planning in place is to protect your minor children. Therefore, selecting a guardian is an important decision and one that should be given careful thought.
Generally speaking, a surviving parent would gain full custody of minor children. However, if there is no surviving parent, then other family members need to apply to the courts to gain custody. This could cause strife amongst your family if there are multiple claims and disagreements about who should be your children’s guardians.
You will also want to consider who will have guardianship over your estate’s assets. Children cannot inherit an estate, so a person will need to be appointed to care for those assets until the children reach the age of majority. That may, or may not, be the same person who has physical custody of the children.
Your children may be older, so their needs may be different. You will not have to think about a guardian; however, there are still decisions that you must make.
While an adult is legally defined as 18-years old, is that the age that you want your child to inherit your estate? Many parents consider their children’s maturity level and put a graduated trust in place. This means that a portion of the estate is released at certain points. It is a wise move that protects your child from the poor decisions of their young adulthood.
Are your children married? Would you want their spouses to inherit a portion of your estate, or should it pass on to any grandchildren? These are questions that must be asked and answered.
The traditional two-parent family is becoming increasingly less common, and complex “stepfamilies” are on the rise. If this is true for you, this needs to be reflected in your estate planning.
For example, you may have a child from a previous relationship. You get married but then pass away, and your will leaves your estate to your spouse (your child’s step-parent). The step-parent passes, but that estate is left to a new spouse or their children. Your child is not protected.
Another example, you and your spouse both have children from previous relationships. You both have wills in place that leave everything to each other and then are divided amongst all the children. You pass, and your relationship between your children and spouse sours. The step-parent amends their will so that their children, and not yours, inherit their estate. Again, your children are not protected.
While we hate to think about such horrible scenarios, it is a disservice to our children if we do not protect them after we are gone.
While you may consider your pet as part of your family, they are property in the eyes of estate legislation. Therefore, if you would like to plan for your pet’s care if you pass, it will have to be laid out specifically in your will.
Be Kind – Plan Ahead
We know that you love your family and want to do what’s best for them. Therefore, give them the gift of estate planning so that their loss does not have to include dealing with lengthy legal matters.
Our firm helps individuals match their estate planning to their lives. If you want to revisit your estate planning, please reach out to us here [link]. Our team would be more than happy to speak with you.