Stop complaining about the cost of getting a Will: get one now!
Whether you use a Do-It-Yourself kit, or get professional advice, almost any Will is better than no Will.
If you die without a Will, the time, effort, and cost of fixing the mess usually far exceeds the cost of doing a Will in the first place.
Higher Income Taxes
No will means no tax planning. Generally, it is possible to save many thousands of dollars of tax with a little planning and preparation. If there is no will, many of the best tax planning opportunities are lost and cannot be recovered.
Higher probate costs and taxes
If you die without a Will, it is likely impossible to sell and real estate you owned and many financial institutions will not deal with anyone until someone is appointed as estate trustee. Accordingly, even for a small, simple estate, if you have no will
- It is much more likely that probate will be required, than if there had been a proper plan in place.
- It is likely that probate taxes will be much higher than if proper planning had been put in place.
- Income taxes are likely to be much higher than if proper planning had been put in place.
- Probating the estate will be much more difficult and expensive because probate for an intestacy is much more difficult (for instance, ‘bonding’ is much harder to deal with than when there is a will)
- Disputes amount possible estate trustees are much more common and much more difficult to fix
- Disputes among possible beneficiaries are much more common, and much more difficult to fix
Higher legal fees for probate
Probate applications for estates without a Will are much more difficult and complex than applications with a Will.
When there is no will, the estate trustee must either post a bond, or secure a Court order dispensing with the bond. Getting a bond is very difficult, time-consuming, intrusive and expensive. Getting a Court order to dispense with a bond is difficult and expensive. Normally, none of these difficulties and costs are incurred when there is a will.
A safe estimate is that it is at least $1000 more difficult to prepare and file a probate application when there is no will than when there is a will and often the applications to dispense with the bond.
Certain factors can make the situation even worse. If, for instance, there is no one eligible to apply to be the estate trustee under the Succession Law Reform Act resident in Ontario, then you must hunt for a third party who is willing and able and the Court will approve to act for you.
If you have real estate in more than one jurisdiction (Province or State or Country), each property will be dealt with separately under the laws of the place where the real estate is located. If you, for instance, had a house in Ontario, a cottage in Quebec and a condo in Florida, that means 3 separate estates to administer and thus 3 times the costs and grief. When there is a will, usually it is possible to re-seal the original application in other provinces and jurisdictions relatively quickly. There is no quick, cheap or easy re-sealing when there was no will.
When there is no will, you may have provide notice of the application to many more potential beneficiaries, and some of them may be minor children. This immediately makes things more difficult and expensive, and can often result in the continuing involvement of The Children’s Lawyer.
No gifts to charity
The Succession Law Reform Act arbitrarily divides your estate among your relatives. It does not provide for any gifts of any amount to charity, even if that was your wish and/or would result in significant tax benefits.
Arbitrary division of your estate
Of course, there are other very important reasons to have a Will, and if you are living common law (not formally married) the consequences of dying without a will (intestate) can be massive and create real hardship for your spouse.
In Ontario a common law spouses have no right to inherit from an intestate estate. Yes, that is “no” as in “none”, “nothing”, “zip”. If there is no Will, a common law spouse gets nothing under the property distribution scheme set up under the Succession Law Reform Act. Similarly, a common law spouses have no right to equalization of property in lieu of inheritance under the Family Law Act. Again, the common law spouse gets ‘nothing”, “nada”, “zip” inheritance when there is no Will, and may end up fighting for support instead. This is much more difficult and expensive than inheritance.