Whether they know it or not, everyone has a will. The problem is that the default will, established by law, tends not to be the answer most people would reach if they had a will prepared to correspond to their wishes and needs.
The details vary from place to place, but the time, trouble and cost is consistent.
In Ontario for example, a spouse of the deceased has six months to decide to receive assets under the Family Law Act or under the Succession Law Reform Act. Family Law would give the survivor the same assets as they might receive in a divorce, while Succession law follows a formula. For families with more than one child, the spouse keeps the first $200,000 and the rest divides 1/3 spouse, 2/3 children.
Assuming the children are minors the Public Trustee will look after their shares until they turn 18. Then they get the money. Probably not how the parent would plan it.
For estates with complex assets like a business, the delays, the public trustee involvement, and the formula fractions can be devastating. Is there any real likelihood that business decisions will be timely, or that the payout to the first child to reach 18 can be done without diminishing the value for other children.
There are a number of other side effects:
- Income can be tied up for several months.
- Income tax results will be about as bad as they can be.
- Many decisions will have a remote bureaucrat involved.
- Assets may be sold in unfavourable markets to meet the distributions.
- If both parents are lost, guardianship will be less personal
- Legal fees will certainly be more
Your estate is the financial value of your life and its efforts. It seems wrong to take risks and to spend so much time, skill and effort developing wealth, without anticipating how to keep more of it.
All estates are distributed one way or the other. The unfortunate reality as one lawyer has told me is, “Where there is no will, there is no way.”
You will never personally benefit from having a good will, but those who remain will be grateful for you having taken care of it.
Don Shaughnessy is a retired partner in an international public accounting firm and is now with The Protectors Group, a large personal insurance, employee benefits and investment agency in Peterborough Ontario.