Wills 101: understanding the basics

Wills 101: understanding the basics

Posted by: Matthew Urback , January 25, 2019

A will offers testators a measure of control over their assets even in death, Toronto litigator Matthew Urback tells AdvocateDaily.com.

“In your lifetime, you have the ability to use your property and spend money however you see fit,” says Urback, an associate with Shibley Righton LLP. “I would suggest most people would want to see that authority continue in death.

“If you don’t make a will, you’re basically leaving the allocation of your assets to the law,” he says, noting that Ontario’s Succession Law Reform Act (SLRA) sets out strict rules for the distribution of an estate when a person dies without a will.

According to the law, the deceased’s surviving spouse gets the first $200,000 from any estate, with the remainder divided through a formula between the spouse and any surviving children. When there is just one child, the remaining assets are split equally with the spouse.

If there is more than one child, then the spouse gets one-third of the amount over $200,000, and the remaining two-thirds are divided equally among all the children.

However, the SLRA does not take into account the individual circumstances of the deceased, Urback says.

“If you want to make decisions that are different from the breakdown under the law, then the only way to exercise any form of control is to make a will,” he adds.

One of a testator's most important decisions is their choice of executor, says Urback.

“This is the person tasked with carrying out your wishes, and they will have some big decisions to make,” he says. “Some people like to name someone who was very close to them, while others prefer to pick someone who is savvy with money. Another option is to choose a lawyer or a trust company.

“A great deal of thought needs to go into making the right choice, which will depend on each individual’s personal circumstances,” Urback adds.

After that, he says testators should turn their focus to the details of who gets what.

“When you’re preparing a will, you have a lot of flexibility,” Urback explains. “Some like to make specific gifts to friends, family or charities, while others prefer to split the estate into shares and name the people entitled to each portion. Or, you can do some combination of the two.”

Although he recommends testators visit a lawyer to ensure their will reflects their wishes, Urback says it's possible for people to put together a less formal version, known as a “holographic will.” As long as they are entirely handwritten by the testator, these wills are exempt from the statutory requirement that a will be witnessed.

“If it’s typed out, it needs to be signed and witnessed by two people who do not benefit under the will,” he adds.