Another important advantage of having a Will is that the testator can choose the person(s) or the trust company that he or she believes is most appropriate to act as the Estate Trustee(s). Where a person dies intestate, an application for a Certificate of Appointment of Estate Trustee Without a Will must be submitted to the Superior Court of Justice (Ontario Division) so that an administrator of the deceased’s estate can be appointed. The administrator that is appointed by the court may not be the person whom the testator would have selected. The appropriate choice for Estate Trustee is a critical decision and it depends upon unique considerations, including the testator’s personal and familial circumstances as well as the nature anBend complexity of his or her estate. An Estate Trustee will invariably have numerous and varying responsibilities and liabilities, not the least of which are dealing with, and relating to, the beneficiaries of the estate. Simply put, having an inappropriate person appointed as administrator can have extremely unfortunate consequences on the testator’s estate as well as on his or her beneficiaries – consequences which are wholly avoidable with proper planning.
Another and related advantage of having a Will is that it provides some degree of freedom and flexibility to the testator regarding to whom the estate is to be distributed. In many instances, a testator is free to distribute his or her estate among family, friends, and charities, in whatever proportion(s) he or she deems appropriate. Similarly, a testator may decide to have his or her estate distributed outright or held in trust, or some combination of the two. A Will provides the testator with the ability to set out his or her wishes in a clear, concise, and legally enforceable manner. Where a person dies intestate, however, the deceased’s estate will be distributed in strict accordance with the provisions of Part II of the Succession Law Reform Act, R.S.O. 1990, c.26 (the “SLRA”). How and among whom the deceased’s estate is distributed will depend solely on whom the deceased is survived by.
Notwithstanding the foregoing, there are some restrictions that, if applicable to a testator’s situation, will impose some legal limitations on the testator’s freedom and flexibility of choice in regards to his or her estate. These restrictions include spousal entitlements provided by the SLRA and Family Law Act, R.S.O. 1990, c. F.3, as well as restrictions that may be contained in marriage, separation, divorce, and/or shareholders’ agreements (again, more on this in a later blog entry).
We will continue discussing the benefits of having a Will in the next entry. Thanks for reading “The Estates Nutshell” – questions and comments are very welcome at estates@cklegal.ca.