
The high cost of no will
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 taxes
If you die without a Will, CRA will not deal with you without an appointments as estate trustee. Accordingly, even for a small, simple estate, probate is much more likely (and thus, probate fees of hundreds or thousands of dollars) are much more likely than if there had been a Will. Similarly, many financial institutions will not deal with your executor without probate because your executor cannot prove that they are indeed your executor. Thus, it is much more common for probate (and probate fees) to be required for small, simple estate when there is no Will than for small, simple estates with a Will.
Save probate fees: have a Will. Save even more by having professional Wills (more than one Will) prepared, to minimize probate taxes.
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.
In our case, we charge at least $500 more for applications for appointment as estate trustee without a Will than for applications with a Will, and $500 seriously underestimates the additional work required. 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.
Notice obligations
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.