Why Do I Need a Will?

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Many parents with young children have heard that they should prepare a will.  Most parents would agree that this is something they should do, yet put it off.  In most people’s minds, preparing a will is often not at the forefront.  With kids to take care of, jobs to worry about, and other obligations, preparing a will is often the last thing on the list of things to do.  This article explains why all parents should seriously consider preparing a will sooner rather than later.

Preparing for Life’s Unpredictable Moments

Let’s face it: thinking about wills brings about unpleasant thoughts of death and mortality.  It’s something all of us would rather not think about.  And especially when we’re young, mortality is often not a big consideration.  But we also know from experience and observation that no matter how much we have a grip on things, some things in life are just not predictable or controllable.  Death and illness is one of these things.  Now that you are a parent, you would agree that one of your utmost responsibilities is to ensure the security and protection of your children, whether or not you are around to provide for that.  A will is often the foundation of providing such security in the event that you are no longer around.

What is a will?

A will is a legal document that expresses your wishes on how everything you leave behind will be taken care of and distributed after death. It allows you to have a voice in your matters even after you pass away. A will can be considered a roadmap that includes who manages your estate, the distribution of assets, guardianship of any children, and even how to handle any debts you leave behind.

When is the right time to have a will created?

When we picture the use of wills, images from movies and the media are often the first ones that come to mind. We picture a sick, old man lying in a bed, with his family surrounding him. Everyone thinks his death is imminent and with millions of dollars at stake, the man’s lawyers are called to read his will aloud and tell everyone how his assets will be distributed.  With images like these in mind, many of us believe that having a will is for those who are older, and even mainly for the elderly. It also makes us think that wills are for people who have lots of money or assets. For younger couples (with or without children), a will seems unnecessary or is something they believe they can take care of later in life. Additionally, as will planning forces us to reflect upon death, it also makes it uncomfortable when we are younger.  However, recognizing that accidents or death can occur at any age, having a valid will is especially important once you begin to acquire assets (such as property), or when others become financially dependent on you (such as children). Having a valid will in place earlier can prevent a tremendous amount of stress, time, and resources in the event of untimely death.
The answer to the question of when the right time to have a will created is always: the earlier the better.

Why is it important to have a will?

The importance of preparing a proper will cannot be stressed enough. Though there are many reasons, some of the main ones are:

Control of Assets

You have the ability to explicitly and specifically decide who will get what from your assets (within the parameters of the laws). Without a valid will, the government will distribute your assets based on provincial laws, meaning your assets may not go to the people you wish it to.

Decide Who Manages Your Assets

You have the ability to decide who will look after your estate and handle all of your affairs (an executor). Without a valid will, a person (usually a family member) will have to apply to the court to become this person, requiring additional time and resources. The person who applies may not even be someone you wish to manage your estate. As this person will have complete control of all your assets, where you are essentially writing him/her a “blank cheque,” it is best to have someone you trust and someone choose to be in control.

Guardianship of Children

If you have children, you have the ability to shape who will be the guardian of your children. This is especially important if both parents become deceased. Without a will, there is a potential for custody battles and the children being cared for by someone other than who you had in mind.

Taxes and Fees

With a proper will and estate plan in place, there is greater opportunity to reduce taxes and fees that must be paid by your estate to the government.

What happens if I don’t have a will?

To die without a valid will is to die “intestate”. The main pitfall that occurs in not having a valid will prepared is that your voice is taken away.

Surviving spouse

If a person dies without a will and is survived by a spouse, how assets are distributed will depend on whether the couple have children.

If the couple do not have children, the surviving spouse is entitled to all the assets.1 While for some people this may not present an issue, a problem arises if you wanted to give some of your assets to other people (such as other family members, friends, etc). Without a will in place, the surviving spouse will be able to keep or utilize your assets as he/she wishes.

If the couple have children, the surviving spouse is entitled up to the first $200,000 of the estate.2 The rest will be divided between the surviving spouse and children. However, without a will, the issue arises of who can manage the children’s assets. Without a will, any assets given to the children are often held by the court until their 18th birthday. Access to these assets is often restricted and requires permission from the court to access it. However, with a will, directions can be given to allow someone to control the assets on behalf of the children and not have the court interfere.

Both parents become deceased

In the unfortunate event that both parents become deceased without a will in place, complicated situations can arise.

In terms of finances, any assets that remain will be distributed according to provincial law. This means that the government will distribute your assets at it best sees fit (need more details on what this could mean), meaning it may not go where you desire it to.

In terms of any surviving children, without a valid will, your ability to decide who should look after any minor children will be forfeited. The court will decide who will take guardianship over the children based on what the judge believes is in the best interest of the children.

Overall, with the courts and government making the decisions, there is bound to be family and friends who do not agree with the decisions and feel they are entitled to more than they were allotted. The aftermath of this often means that disputes and in-fighting may occur between relatives, the distribution of assets will be delayed, and additional costs will be incurred as family members hire lawyers to represent their interests.

Conclusion

Planning out a will and reflecting upon the eventualities of an untimely death are a difficult undertaking. However, the costs of planning out a will can be minimal compared to the stress, hurt, and aggravation that can arise if decisions are left to the courts and the government. For greater peace of mind in knowing your loved ones will be taken care of, creating a will should be an integral part of planning for your family’s future.


  1. Succession Law Reform Act, RSO 1990, c S.26, s 44 

  2. Succession Law Reform Act, O Reg 54/95, s 1 

About Simon Park

I am a Toronto-based lawyer and a Partner at Park & Jung. You can connect with me on LinkedIn.