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Yes, You Really Do Need a Will!

death tax canada

Introduction
On January 23, CTV News published an astonishing survey (https://www.ctvnews.ca/lifestyle/majority-of-canadians-don-t-have-a-will-poll-1.3772853) showing that the majority of Canadians (51%) do not have a will. Reasons for not having a will include being too young to worry about it (25%), not having enough assets to make it worthwhile (23%), and not wanting to think about dying (8%). But what happens if you pass away without a will? Why are wills needed? Is it really necessary? The answer is that in almost all cases, you really do need a will or you will be leaving your loved ones with significant unnecessary hassle and expense if you die without one!

 

What happens if I die without a will?
So what happens if someone dies without a will? Generally if you have a spouse, your property will go to your spouse. If you do not have a living spouse, then your property will go to your children, and if you have no children left, then to grandchildren, and so on. In Alberta the exact distribution is governed by the Wills and Succession Act SA, 2010 c W-12.2 (the “Act”). [1]

However, if someone dies without a will and without any living family, their property still escheats to the Crown. The Crown in-Right of Alberta (practically speaking, the Alberta government) has decided that when this happens, the money should go to post-secondary institutions in this province. While this all sounds reasonable in theory the concern is this: if you die with $100 in assets to your name it is the government deciding what happens to that $100, and not you! The current distribution method has been determined by an act of the legislature – and it can just as easily be changed by the legislature. As a result there really is no certainty what will happen to your assets (whether that be $100 or $100 million) if you die without a will.

If you are divorce then (generally) your former spouse will not inherit your estate if you do not have a will, but your kids will receive your property instead. However, we recently dealt with one case where a couple had been separated, not completed the paperwork for divorcing. So despite being estranged, when the “husband” died, the “wife” inherited everything – despite this clearly being contrary to the wishes of the husband. [2]

 

Probate Issues
Let us assume that someone just wants their property to go to their spouse (or split evenly among their children, if they do not have a spouse). If you and your spouse own everything jointly, (and we really mean everything), when one of you passes away, then everything that was jointly owned (such as residences and bank accounts) will pass to the other by survivorship. It is important to know the difference though between owning something “jointly” and owning something “in-common”. Just because two people own something together, does not mean that it is “jointly” owned. Joint ownership has very specific meaning in law. If you are unsure, please contact us for further information. Moreover, assets like life insurance, RRSPs, TSFA’s, pensions, etc., have their own beneficiary designation rules, and so these assets usually pass to the spouse or kids directly outside of the estate.

However, if you do not have a spouse, or let’s say both spouses die at the same time, such as in a car crash, then the rules in the Act will apply. You may be willing to risk betting that the legislature will not change the rules and that your spouse or children will eventually obtain everything, even if you don’t have a will. There is nothing wrong with this in theory. However, there are still very serious practical implications to doing this. When someone dies without a will, those who have a right to inherit under the Act do not do so immediately. A Court must first approve the distribution of the estate of the deceased person. This approval used to be knowing as a “grant of probate” but now is known as a “grant of administration with (or without) a will annexed”. For our purposes though, we can use the term grant interchangeably.

The issue here is that obtaining a grant of probate or a grant of administration is not a quick matter – one does not simply walk down to the courthouse and ask to speak to a justice. First, an extensive amount of paperwork must be filled out. Often multiple parties will need to get together to sign the paperwork. If people live in different cities, this means signing off on things, and then mailing them to the next person in a relay. Once the paperwork has finally been filled out, it is then submitted to the Surrogate Court clerk, who will review the paperwork. The turnaround time for this review is currently 6 – 8 weeks in larger cities. If the paperwork has any issues, (which is often the case, even when lawyers are the ones filling out the papers) the clerk will return it to the lawyer to make corrections, resubmit it, and the 6 – 8 week wait begins anew. Once the clerk is satisfied that everything has been properly filled out, the paperwork then is sent to a justice who also reviews it to ensure that it is in compliance with the rules. And once again there is a significant delay here as the justices also have a significant amount of backlogged applications to process. If the justice is content that the paperwork has been filled out properly he or she may issue a grant, or if he or she has questions they may order an in-person appearance in Court. If an in-person appearance is ordered, it must be scheduled for a future date, and again this can result in a significant delay.

The entire process is lengthy, and it is easy to see why phrases like “the executor’s year” or “the probate year” are used. Eventually though, a justice will likely issue the grant and the spouse or children will then be entitled to the deceased person’s estate.

 

Delay Issues
By now some people reading this will be thinking “okay, so there will be a delay, but my spouse or kids will still get my stuff, right?” While this may technically be true, there are some very serious practical issues that may arise during the wait for it to occur. If you were living alone prior to passing away, your service providers may cut services to your home for non-payment of bills. A lack of power in an empty home in the summer is not really an issue, but a lack of heat in the winter when it is -40 outside is an issue: water pipes burst, countertops start to fall apart, and floors warp. These become much costlier for your beneficiaries to repair, than it would be to have a will drafted. Even if someone can talk a utility company into permitting payment of the account by someone other than the account holder (which isn’t always the case), the company insuring the home will likely cancel the house’s insurance policy. And if the home burns or is vandalized while it sits empty, or has burst pipes from freezing, there will be no insurance to cover the loss.

And even if someone passes away while their spouse is still alive, this too can create a multitude of issues. If the deceased person owned a vehicle only in his or her name, no one can sell or insure the car until the Court issues the grant. If a spouse had a bank account only in his or her name, the surviving spouse cannot access the money until the Court issues the grant. If the deceased person had investments in his or her name, the surviving spouse or children cannot sell off or otherwise gain access to the investments prior to the Court issuing the grant – even if the market was collapsing!

More importantly, if both spouses die, and there are minor children or young adults left behind, on top of the family tragedy, the lack of a will can be an economic disaster. First, the Office of the Public Guardian will step in to manage things on behalf of anyone who is not yet 18. Assuming that once the government is running your kids money, everything is guaranteed to be just perfect may be slightly naïve. Young adults, who may legally be in a position to inherit directly, may not yet be mature enough to deal with a sizeable amount of assets. Without a will to control the distribution of assets and funds, young adults suffering from the loss of their parents and then receiving huge windfalls may not do rational and positive things with sudden money.

 

Owning Nothing when Dying
Even if a person does not own a single thing when they die (for example, if they gave everything to their children prior to passing), it is still a good idea to have a will! Even after a person passes away, there are things that need to be done: the CRA expects that a final tax return be filed after someone passes away if they made any income at all in the year before they died (including pension income). No one has the authority to file a tax return for someone else, unless that person has given their permission (usually in their will) or unless the Court has issued a grant. As a result, even though the deceased person may not have owned a single thing prior to dying, the estate may be entitled to receive money back from the CRA. If the person did not leave a will, the heirs will have to wait a significant amount of time to file the final return, and even longer to receive any money from the CRA.

 

Everyone Should Have a Will
Everyone should have a will, regardless of age, wealth, marital status, parental status, and health. Even if you own very little, or are young, you should have a will. If you have a spouse and want everything to go to him or her upon your passing, which the legislation will facilitate if you don’t have a will, not having a will means that your spouse will face considerable hardship and hassle in settling your estate. Your spouse and children will have to wait a significant amount of time prior to inheriting your possessions if you are the only one on title for bank accounts or whose name is on the mortgage. And once they do eventually inherit, that is when the real disaster can start. Not having a will is simply not worth the risk when it is so quick, easy, and relatively cheap to create one and having one will save your loved ones a significant amount of time and headache when you pass away. If you have a will, and your personal circumstances have changed, you may need a new will.

Now that we have explained why you ought to have a will, contact us today to see how Dominion Tax Law can help you!

 

[1] The Provinces all have similar legislation, including Quebec, but Quebec has its own set of rules re wills.

[2] In Alberta if the parties have been separated for more than 2 years, but not divorced, and the first person dies without a will, then the law treats the second person to have already died before the first (in other words, the person who is still alive has no right to inherit from the person who died). See Wills and Succession Act SA, 2010 c W-12.2 at s. 63.

 

Our Fees for Wills
Our extremely competitive fee structure is as follows:

A basic will: $400.00
A personal directive: $150.00
An enduring power of attorney: $150.00
A package of all three: $600.00 (that is a $100 discount!)

If you and your spouse both need assistance with these matters, our fee structure is as follows:

Two spousal wills: $650.00
Two spousal personal directives: $250.00
Two spousal enduring powers of attorney: $250.00
A complete package for two spouses: $950.00 (that is a $200.00 discount!)

Definitions:
A “personal directive” is a document which sets out your wishes for medical care, and who can make decisions related to your medical care, if you cannot.

An “enduring power of attorney” is a document which describes how you would like your money and other assets handled if you are still alive, but you cannot make the decisions yourself (such as if you were in a coma).

A “basic will” includes situations where all assets and investments are based in Canada, both spouses are employees and neither spouse owns a business or income properties, where there is a conventional family structure (such as a two spouses and children, all of which are children of both spouses), where there are no other tax or trust planning implications, and where no other complex issues exist. If your situation is more complex than the typical family (blended families, special needs children, major inheritances expected, family businesses involved, overseas assets), we can certainly still assist, but we have to revise our fee structure based on the complexity of your situation.


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