November is Make a Will Month
Make a Will Week and Make a Will Month are annual awareness campaigns, with the goal of informing and educating you on the need for a Will. Although formally Make a Will Month in Ontario (Manitoba Make a Will week was in April), I will use it as an inspiration for you to get a Will!
Despite the fact that every adult needs a Will, a recent national survey showed that 62% of Canadian adults still do not have a Will. And more than 10% of Canadians noted that while they did have a Will, it was actually out-of-date: it no longer reflects their desired executors or beneficiaries.
Why is Having a Will so Important?
Two of the most important functions of a Will are:
1. choosing how to distribute your estate among loved ones and charities, and
2. making key appointments including Executor(s) to administer your estate and a guardian for minor children.
Your estate distribution could be as simple as “leave everything to my spouse, and once we are both gone, divide everything between our children”. But even basic intentions need a Will. And more complex wishes definitely need a well thought out executed Will. A Will even allows you to make provisions for the care of a pet, through a Pet Trust.
Why Do Most People Not Have a Will?
Most estate planning lawyers charge between $500 and $800 per person for a complete estate plan including a Will, a financial Power of Attorney and a Health Care Directive. This seems expensive to many people and they put it off.
It is never a good strategy to not have a Will. A Will should be written as soon as you are an adult; and updated and replaced throughout your life.
Writing your Will doesn’t really benefit you in any way – you will be dead. But if you care anything about the people you are leaving behind, you would take the time to prepare a Will.
If you have ever had to administer an estate of a parent or loved one who did not have a Will, you realize how important it is. A properly executed Will saves money (reduced lawyer fees, no bonding fees) and time (delays in getting someone appointed as legal representative).
What Happens If You Die Without a Will?
If you die without a Will there is generally a lot of confusion. Nobody is in place to take charge because nobody has been named as the Executor or estate administrator. Eventually, hopefully, somebody will put their hand up and say I will do it; they will then apply to the probate courts to administer an estate without a Will.
There are many things the potential administrator needs to do immediately: prove to the probate courts that no Will exists, get an inventory of your assets, plus get approval from other family members to be the administrator. And the administrator may also need to be bonded (insured) and this costs the estate more money!
Dying without a Will is known as dying “intestate”
If you die without a Will, you will not be able to decide who inherits from you. Your assets will be distributed based on the laws of your province, your estate will go through a lengthier probate process, and your family will have a much more difficult time obtaining your assets.
It is common for people to assume that when they die, everything will automatically go to their spouse. In fact, if you have common children this only happens in Alberta and Manitoba. Every other province distributes an intestate estate between a spouse and children. This can often result in a family home being sold off in order to create the required distribution.
If you are living common-law and have lived with your common law spouse for more than three years, only some Provinces like Manitoba recognize this relationship. For example, in Ontario dying without a Will in a common-law relationship gives the surviving partner…..nothing.
If you have minor children and both parents die in a common accident, your children are put in the care of guardians. Hopefully you will have family members who put themselves forward as candidates. Ultimately, a judge will decide on the most appropriate guardian from the selection of applicants.
Of course, a judge will not know any of these people, so they will make a decision based on their biological relationship to the children, their financial means, their location, age and their own family status. The judge will not be able to assess their personal interactions with the children, their alignment with your own moral and spiritual beliefs, or parenting styles.
It is amazing how many people get stuck on completing a Will with the question of guardianship. It is a very difficult decision, but one that is better made by you, rather than a judge. If you name a guardian in your Will, the judge will use this appointment as the over-riding influence in their decision.
Get a Properly Executed Will
Are you still not sure that you need a Will? For example, what if you don’t have kids, or don’t care how your estate is distributed? As a tax preparer, I need to know who will look after your final tax returns; who will be signing the authorization forms?
I do get asked about the on-line or paper “Will Kits”. They may look good enough, but one problem is the proper execution: signing and witnesses. One of the witnesses needs to complete an affidavit of execution. This is an important step that is missed when you try to do it yourself.
If you already have a Will but are recently married or in a new common-law relationship or if you are recently separated, review your Will; it may need to be replaced with a new one.
Plus you need the other important documents too: Power of Attorney and Health Care Directive / Living Will. And the Power of Attorney can only be witnessed by certain professionals in Manitoba; you cannot complete a POA from a kit if you live in Manitoba!
Get started today. You won’t believe how satisfied you will feel once you have all your estate documents completed. You will finally have peace of mind for you and your loved ones.
If you need more information or some direction, please contact our office.
Anni Markmann is a Personal Income Tax Professional and Certified Financial Planner; living, working, and volunteering in our community. Contact Ste Anne Tax Service at 204.422.6631 or 36 Dawson Road in Ste Anne (near Co-op) or info@SAtaxes.ca