DeDominicis: Legal importance of having a will

By not having a will, you effectively lose control over who gets your estate, how much and when.

Everyone should have a legal will.

A will becomes even more important where you have assets (i.e. own a home, have businesses etc.), have a spouse and/or children.

By not having a will, you effectively lose control over who gets your estate, how much and when.

You also give up the right to appoint an executor of your choice to administer your estate as you direct in your will.

You also give up the right to appoint a guardian of your choice for any minor children you may have. If you have those rights, why not choose? A will is the only way to ensure your wishes get carried out your way.

If you die without a will, your assets are held by the government and will likely be distributed in a manner contrary to your wishes.

Unfortunately, people continue to die without a will.

The biggest change to intestacy rules under the Wills Estates Succession Act (“WESA”) legislation affects spouses.

Under the old legislation (pre-March 2014), spouses received $65,000 and a life estate in the home.

Under WESA, the intestacy distribution is as follows:

• If there is a spouse and no children, all to the spouse

• If there is a spouse and children, then the spouse receives the first $300,000 of the estate, and the children receive the remainder, BUT if there are children from a prior relationship, the spouse only receives $150,000

• If there is no spouse, all to the children. If a child pre-deceases the deceased, then to his/her children in equal shares (being the deceased’s grandchildren)

• If there is no spouse and no children, then the estate would go to the deceased’s parents

• If there are no parents, than to the deceased’s siblings in equal shares

• If there are no siblings, then to the deceased’s grandparents

• If there are no grandparents, then to the deceased’s aunts and uncles in equal shares.

Further, the spousal life interest in the matrimonial home is abolished under WESA.

Instead, the spouse will have the right to purchase the matrimonial home or elect that it be considered part of his or her share of the estate.

The spouse must elect this option within 180 days from the grant of letters of administration.

It is always important to have an up to date will that reflects your current circumstances and wishes.

You are not doing so for your benefit, you are doing so for the benefit of the loved ones you leave behind.

Executing an up to date Will that reflects your current wishes will not only provide you with peace of mind, but it will minimize the costs of probating and administering your estate, which in turn will maximize the inheritance your beneficiaries will receive.

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