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Feb

25

Protect Your Loved Ones

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Without a Will, your property will be divided according to government laws, which may not be in accordance with your wishes.   Your children may also end up with someone less than ideal.  And since you don’t have a say on who gets your property, you won’t be able to make specific gifts of cash, personal property, real estate, etc. to particular individuals or organizations either.  Your loved ones may get involved in court battles concerning the validity of your Will (if you have an invalid / out-of-date Will) or what happens to your property and kids when you pass away.

To see what happens to your property if you don’t have a Will in a particular Province, just click on the link below:

Alberta
British Columbia
Manitoba
New Brunswick
Nova Scotia
Ontario
Saskatchewan

Peace of Mind Starts HERE:

To create your own Last Will and Testament (and don’t forget about creating your Powers of Attorney too!), just click on the image below:

YOU want a Will software:

  • That is based on provincial Wills laws (not something that claims it is good for “Canada” but which doesn’t use the right language or follow the laws of your Province).
  • That is comprehensive enough to take into account your unique situation.
  • That is easy to understand, fast to go through, and affordable (no additional legal fees required).
  • That is created by a Canadian lawyer.
  • That allows you to edit your Will for free for the first year (not just a one-shot type of deal).
  • That comes with a 30-day moneyback guarantee.
  • The comes with a free comprehensive eBook about Wills in your Province.
  • That comes with free signing instructions (to help you avoid making mistakes when signing your Will).
  • That comes with a Personal Information, Assets and Liabilities Checklist (to help you get organized).
  • That is regularly updated (particularly when laws change).
  • That has received lots of testimonials from other customers and which has been featured in national and local media (see below).

And that’s exactly what the Will-O-Matic Wizard aims to deliver.

How the Will-O-Matic reduces the likelihood of court battles

If you have a Will but did not enter into it properly, it may be challenged.  For example, if you don’t have sufficient mental capacity at the time of making a Will, then it is invalid.  Your Will – or part of it – is also invalid if you included something (e.g. a gift to someone) as a result of fraud or pressure or mistake.  If you write your Will and then get married, your Will is automatically revoked.  That is, unless your Will is made in contemplation of your marriage to that specific person.  If you sign your Will without two (2) witnesses, then your Will is invalid.   And if your witnesses are also beneficiaries (i.e. persons you give gifts to in the Will) or the spouses of beneficiaries, then gifts to them will be void.  Any change made to your Will after it has executed (i.e. signed and witnessed) is invalid unless it is executed in the same manner as the Will. If you lose your Will, then when you die you will be presumed to have revoked it!  Finally, if you give a gift of real or personal property to someone in your Will but don’t own that property at the time of your death, then that person generally won’t receive anything!  Now how many Will Kits are out there that adequately educate you along the way and afterwards to help you ensure that you don’t invalidate your Will?  You guessed it: not many!

You can help prevent court battles by using our Will-O-Matiz Wizard.  We educate you along the way (throughout the questionnaire and in the comprehensive eBook that comes with your Will) so that you understand how Wills can be challenged and therefore doing everything within your power to prevent that.  A little education goes a long way!

Alberta

In Alberta, if someone dies without a Will, their property will be divided according to the rules set out in Part 3 of the Wills and Succession Act:

  • If an individual dies leaving a surviving spouse or adult interdependent partner but no descendants, the entirety of the estate goes to the surviving spouse or adult interdependent partner.
  • If an individual dies leaving a surviving spouse or adult interdependent partner AND one or more descendants, then:
    • the entirety of the estate goes to the surviving spouse or adult interdependent partner, if all of the deceased’s descendants are also descendants of the surviving spouse or adult interdependent partner, OR
    • if any of the deceased’s descendants are not descendants of the surviving spouse or adult interdependent partner,
      • the surviving spouse or adult interdependent partner is entitled to the GREATER of the prescribed amount (currently $150,000) or 50% of the net value of the estate, and
      • the rest of the estate shall be distributed among the deceased’s descendants (i.e. children and grand-children and great-grand children, otherwise the deceased’s parents, otherwise the descendants of those parents, otherwise the deceased’s grandparents, otherwise descendants of those grandparents, etc.).

With respect to your minor children, a person can name in their Will who they wish to have as the Guardian of their minor or disabled children and Trustee of their property: section 22 of the Family Law Act, S.A. 2003, c F-4.5 and Minors’ Property Act, S.A. 2004, c M-18.1.  If the Will does not specify a person to be the Guardian of their minor children or Trustee of their share of the estate, then someone will need to apply to the Court to be the Guardian of the child and Trustee of their property.  If no one steps in, then the Public Trustee will step in.

British Columbia

If someone dies without a Will in British Columbia, their property will be divided according to the rules set out in the Estate Administration Act. Sections 83 through to 89 of the Estate Administration Act say that, when a person dies intestate (i.e. without a Will), then their estate will be divided as follows:

  • entirely to their spouse (which includes a common law spouse), if only their spouse remains alive.
  • entirely to their “issue” on a per stirpes distribution (i.e. one level of descendants at a time and if someone has predeceased, then their next level of descendants would equally inherit their share), if only their issue is alive.
  • Where there is a spouse and issue, the first $65,000 of the value of the estate will go to the spouse and either 1/2 of the residue (i.e. the remaining amount) will go to the spouse if there is only one child OR 1/3 of the residue will go to the spouse if there is more than one child. The spouse is also entitled to the household assets.
  • WITHOUT a surviving spouse or surviving issue, then the entire estate will be split in equal shares amongst:
    • the intestate’s surviving father and mother (or to the sole survivor of them);
    • the intestate’s surviving brothers and sisters if there are no surviving parents (note: if a brother or sister is dead, then the children of the deceased brother or sister take the share their parent would have taken if living);
    • the intestate’s surviving nieces and nephews if there are no surviving siblings; and
    • the next of kin of equal degree of consanguinity to the intestate if there are no surviving nieces and nephews.

An estate goes to the government only if no relatives are known or they cannot be found, and if all time limits set by the law have passed.

With respect to your mind children, a person can name someone in their Will to be the Guardian of their minor or disabled children and Custodian of their property (except for their services and earnings): section 50 of the Infants Act,R.S.B.C. 1996, c. 223.  The Testator / Testatrix can also give the Executor powers to pay the Guardian and Custodian. It is worth mentioning that the decision to appoint a certain person as Guardian can be reviewed by a court.  Furthermore, family members can apply to have a decision in the Will set aside.  However, it must be strictly proven that the appointed Guardian is not suitable for the position.  Also worth mentioning is that, if you and your spouse’s appointed Guardians and Custodians are different people, then the Will of the last person to die (i.e. you or your spouse) governs.  Just make sure you realize this!

Manitoba

If someone dies without a Will in Manitoba, their property will be divided according to the rules set out in the Intestate Succession Act, CCSM c I85. Sections 2 through to 7 of the Intestate Succession Act say that, when a person dies intestate (i.e. without a Will), then their estate will be divided as follows:

  • Entirely to their surviving spouse or common law partner if they have NO issue (descendants of all degrees).
  • Entirely to their surviving spouse of common law partner if they HAVE surviving issue which belong to both of them
  • Where there is a surviving spouse or common law partner AND surviving issue only of the intestate BUT not of the spouse or common law partner, then the first $50,000 of the value of the estate OR 1/2 of the estate (whichever is greater) will go to the spouse or common law partner and then 1/2 of the residue (i.e. the remaining amount) will go to the spouse and the other 1/2 of the residue will go to the issue equally per capita
  • WITHOUT a surviving spouse or surviving issue, then the entire estate will be split in equal shares amongst:
    • the intestate’s surviving father and mother (or to the sole survivor of them);
    • the issue of the intestate’s parents, distributed per capita at each generation (in other words, the estate will go to the intestate’s surviving brothers and sisters if there are no surviving parents; note: if a brother or sister is dead, then the children of the deceased brother or sister take the share their parent would have taken if living);
    • the paternal and maternal grandparents (or to the survivor of them) or their issue;
    • the paternal and maternal great-grandparents (or to the survivor of them) or their issue.

An estate goes to the government only if no relatives are known or they cannot be found, and if all time limits set by the law have passed.

With respect to your minor children, naming a Guardian in a Will does not guarantee that person will be chosen if there is a dispute among friends and/or relatives who want to care for the children.  Naming a Guardian in a Will does, however, give the court a clear indication of the parent’s wishes and can carry substantial weight as the court decides who should be the children’s guardian.  That person will still need to apply to the Court to be the Guardian of the child and their property.  They can do this under the Infants’ Estates Act, C.C.S.M. c. I35 and by following Rule 67.02 of the Court of Queen’s Bench Rules, Manitoba Regulation 553/88.

New Brunswick

If someone dies without a Will in New Brunswick, their property will be divided according to the rules set out in the Devolution of Estates Act, R.S.N.B. 1973, c D-9. Part II of the Devolution of Estates Act say that, when a person dies intestate (i.e. without a Will), AND:

  • is survived by a widow and NO issue (i.e. children, grandchildren, etc.), then the widow will receive everything;
  • is survived by a widow and ONE child, then the widow will receive any interest the intestate had in the matrimonial home and ONE-HALF of the residue of the deceased’s estate;
  • is survived by a widow and children, then the widow will receive any interest the intestate had in the matrimonial home and ONE-THIRD of the residue of the deceased’s estate;
  • is DOES NOT have a surviving spouse or issue, then the entire estate will be split in equal shares amongst:
    • the intestate’s surviving father and mother (or to the sole survivor of them);
    • the intestate’s surviving siblings if there are no surviving parents;
    • the intestate’s surviving nieces and nephews if there are no surviving siblings; or
    • the nearest ascertainable surviving relative if there are no surviving nephews or nieces.

    If the Will does not specify a person to be the Guardian of their minor children or Trustee of their share of the estate, then someone will need to apply to the Court to be the Guardian of the child and their property.

Nova Scotia

If someone dies without a Will in Nova Scotia, their property will be divided according to the rules set out in the Intestate Succession Act, R.S.N.S. 1989, c 236. Sections 4 through to 10 of the Intestate Succession Act say that, when a person dies intestate (i.e. without a Will), then their estate will be divided as follows:

  • Entirely to their surviving spouse if they have NO issue (which will be discussed in greater detail below)
  • If there is a surviving spouse AND issue, then the first $50,000 of the net value of the estate goes to the spouse. The surviving spouse has the option to receive the home instead of the $50,000 where the value of the home is more than $50,000. Once the home and the $50,000 have been dealt with, the residue (i.e. the left over) will be divided between the spouse and the surviving children as follows: if there is only one child, then the residue will be divided equally between the spouse and that child; if there is more than one child, then one-third of the residue will go to the spouse.
  • If there is NO surviving spouse or surviving issue, then the entire estate will be split in equal shares amongst:
    • the intestate’s surviving father and mother (or to the sole survivor of them).
    • the intestate’s surviving brothers and sisters if there are no surviving parents.
    • the intestate’s surviving nephews or nieces if there are no surviving siblings.
    • the intestate’s next of kin of equal degree of consanguinity to the intestate.

    If the Will does not specify a person to be the Guardian of their minor children or Trustee of their share of the estate, then someone will need to apply to the Supreme Court to be the Guardian of the child and Trustee of their property.  If no one steps in, then the Public Trustee will step in.

Ontario

If someone dies without a Will in Ontario, their property will be divided according to the rules set out in the Succession Law Reform Act. There is a standard procedure which divides property according to family relationships. Here are some of those rules:

  • If a person dies without a Will and is survived by a spouse without children, then the spouse is entitled to the property absolutely. Worth mentioning is that a spouse is generally entitled to a preferential share under the Regulations made under that Act up to the first $200,000 of the estate before it is divided among any remaining heirs. This basically means that if the estate‘s net worth is $200,000, then the spouse will be entitled to all of it!
  • If a person dies without a will and a spouse and one child survive, then the spouse will be entitled to their preferential share and an additional 1/2 of the residue of the estate.
  • If a person dies without a will and a spouse and children survive, then the spouse will be entitled to their preferential share and an additional 1/3 of the residue of the estate.
  • If a person dies without a will and without any spouse or children surviving, then their living parents will be entitled to the property either equally (or one of them will get it absolutely if only one is alive).
  • If a person dies without a will, without any spouse or children, and without any parents, then their property will be distributed equally among any living brothers and sisters (or their children).
  • If a person dies without a will, without any spouse or children, without any parents, and without any brothers or sisters, then their living nephews and nieces inherit an equal portion of the residue of the estate.
  • Finally, if a person dies and there is no surviving spouse, children, parent, brother, sister, nephew or niece, then the property ―shall be distributed among the next of kin of equal degree of consanguinity to the intestate equally without representation. If a person has no such living next of kin, then generally the estate goes to the government.

With respect to your minor children, a person can name someone in their Will to be the “Custodian” for their minor children and “Guardian” of their property: see section 61 of the Children’s Law Reform Act, R.S.O. 1990, c C.12. You can also give the Estate Trustee powers to pay him or her. A parent is not automatically the Guardian of his or her child‘s property. It is important to note that, whoever is named in your Will as the Custodian and Guardian can only act as such for 90 days from the date of the Testator / Testatrix‘s death: section 61(7) of the Children’s Law Reform Act. During that period, they should apply to the Court for an order formally appointing them as the Custody and Guardian of the Testator / Testatrix‘s minor or disabled children. Also worth mentioning is that, if your and your spouse‘s appointed Custodian and Guardian are different people, then the Will of the last person to die (i.e. you or your spouse) governs.

Saskatchewan

If someone dies without a Will in Saskatchewan, their property will be divided according to the rules set out in the Intestate Succession Act, 1996, SS 1996, c I-13.1. Sections 6 through to 12 of the Intestate Succession Act say that, when a person dies intestate (i.e. without a Will), then their estate will be divided as follows:

  • Entirely to their surviving spouse (which includes common law spouses as defined in that Act) or if they have NO issue.
  • If there is a surviving spouse AND issue, then the first $100,000 plus interest of the net value of the estate goes to the spouse and the residue (i.e. the left over) will be divided between the spouse and the surviving children as follows: if there is only one child, then the residue will be divided equally between the spouse and that child; if there is more than one child, then one-third of the residue will go to the spouse.
  • If there is NO surviving spouse or surviving issue, then the entire estate will be split in equal shares amongst:
    • the intestate’s surviving father and mother (or to the sole survivor of them).
    • the intestate’s surviving brothers and sisters if there are no surviving parents.
    • the intestate’s surviving nephews or nieces if there are no surviving siblings.
    • the intestate’s next of kin of equal degree of consanguinity to the intestate.

    A person can name someone in their Will to be the Custodian of their minor children and Guardian of their property: sections 4 and 30 of the Children’s Law Act, 1997, S.S. 1997, c C-8.2.  Naming a Custodian / Guardian in a Will does not guarantee that person will be chosen if there is a dispute among friends and/or relatives who want to care for the children.  Naming a person in a Will does, however, give the court a clear indication of the parent’s wishes and can carry substantial weight as the court decides who should be the children’s Custodian / Guardian.  That person will still need to apply to the Court for an order confirming his or her entitlement to be the Custodian / Guardian: section 5(1) of the Children’s Law Act.

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