The Importance of Preparing Your Will

Brian Pybus, Sunday, April 12, 2015

THE IMPORTANCE OF PREPARING YOUR WILL

 

So you don’t have a will? Maybe you think wills are only for ‘oldsters.’ Or maybe you think it’s not necessary to prepare one because when you, um, snuff it: the spouse gets everything; or the family will take care of whatever’s required; or you’ve expressed your wishes orally and that should be sufficient; or you’ve handwritten your thoughts on who you want and don’t want to get their hands on your stuff.

If any of the above excuses sound familiar, it’s probably just as well you’re not around when it comes time to divvy up what you had. Dying intestate – without a legally valid will – allows your provincial government to step in and distribute your goodies according to its rules. And if those rules don’t happen to conform to your wishes, well that’s just too bad: you had your chance.

If you don’t have a will you’re certainly not alone. A recently released province-wide study conducted on behalf of the Society of Notaries of British Columbia revealed that some 45% of BC adults do not have a current and legal will, rising to 49% of those aged 35 to 54 and 80% of those aged 18 to 34. Of those aged 55+ that figure falls to 17%. One may conclude that these findings are probably typical for every Canadian province.

BC’s provincial government found these results sufficiently dismaying that it decided to step up public awareness of the need to prepare a will. The week April 6th through 12th 2015 was proclaimed Make-a-Will Week. The emphasis is on getting more of the younger generation to be conscious of the need to consider those important to them – their spouses and families, their business and personal relationships, their charitable and religious interests, the beneficiaries of their legacies – and see a lawyer or Notary Public in order to properly provide for them. Really, a will is not so much for your benefit as it is for those you leave behind.

You may assume that your common-law spouse or same-sex partner will automatically inherit your estate, but unless that’s specified or enshrined in law then you’d be wrong. What about kids from a previous relationship, or those brought into a new relationship by your partner? You may wish to entirely exclude a certain family member, but the law may have something quite different to say. What about your business interests or assets outside your province? Preparing a will is usually a straight-forward matter. However, many of us have situations which require the advice of a knowledgeable resource. That’s a value provided by lawyers and notaries.

This article does not purport to be an authority on the subject of wills and estates. What it does hope to do is encourage the reader to prepare a valid will, or if you’ve already taken this step – congratulations, by the way – then consider getting into a routine of reviewing it every five years. Things change, job-wise, asset-wise, health-wise and relationship-wise, and the thinking that went into making the decisions that shaped your will then may now be different. Your will should reflect your latest thinking.

 

In preparing your will you can be as detailed and specific as you wish, or keep it simple. Whichever way you go here is some basic information that the person preparing your will needs to know:

  • About You: Your full name, current address, date of birth and SIN number.
  • About Your Spouse: If you have a married spouse, common-law spouse or same-sex partner, provide the full name, address (presumably the same as yours), date of birth and SIN number.
  • About Your Children: The full names and addresses of all of your children, even those from previous relationships. If the children are considered minors you will need to address the issue of guardianship/custody, so list the names and addresses of those you wish to take care of the children in that capacity.
  • Executor/Executrix: Someone needs to be responsible for carrying out the wishes in your will, paying any of your debts and any taxes which may arise. This person is called an Executor or Executrix, depending on whether male or female. This person is appointed by you to carry on the affairs of your estate and to follow the instructions specified in your will. Name an alternate Executor or Executrix should the first pass away before executing the will or if he or she is unable to serve at the time of your death. Lawyers and Notaries will usually act in either capacity if you have no-one in mind, but they still need to be specifically designated as such in the will.
    • In choosing an Executor/Executrix, you should consider suitability, honesty and proximity. If you choose your cousin Fred as your Executor, that’s fine, but if Fred happens to live in Saskatoon and the will’s area of jurisdiction is British Columbia, then the question of reimbursement of reasonable expenses has to be considered. And how would that impact the distribution to the beneficiaries? You may wish to state a specific amount to be paid to the Executor/Executrix. You need to ask the professional preparing your will. Other questions might be whether your choice of Executor/Executrix requires to be bonded, and whether he/she need be a Canadian citizen.
    • Above all, you should first ask the person you are considering for the position whether he or she would be willing to do so.
  • Guardian: If you have minor children it’s important to select a Guardian for them, someone who will look after the children’s best interests. You should have a serious discussion with whomever you choose, outline in writing what you expect and get the person’s written consent. Attach both the list and the signed agreement to the will.
  • Funeral: In instructing the Executor/Executrix, you may want to detail disposition of your remains (burial or cremation) and funeral-related details, viewing, a Celebration of Life, donations in lieu of flowers made to a favourite charity, an obituary to be published in the local newspaper, and so forth.
  • Disposal of the Estate:
    • List any gifts you would like distributed to certain people (e.g.: a coin collection to, say, a favourite nephew; a formal silverware set to a certain sister; specific furniture to a particular friend; a certain car to a local charity).
    • Specify the percentages of your assets to be distributed should the listed beneficiaries survive you. The estate might be divided evenly between your two children, for example. You need to consider that your beneficiaries may not survive you. In that event then you can establish an alternate list of beneficiaries or list nothing, in which case the assets will be put back into the general pot.
    • Indicate the executor has permission to sell your home and personal belongings that are not included in the personal gifts to be distributed and include an instruction on how to distribute any remaining assets.

 

Life events often mean you develop changing perspectives: some long-standing relationships are replaced by new ones, and some changes are necessitated by law. Events such as marriage and divorce, the arrival of children and deaths all serve to re-prioritize what is important in your life. It’s at these moments that your will should be revisited and revised accordingly. Hospitalization/scheduled surgery, travel, and acquiring significant assets such as real estate or a business are other moments when the provisions of your will should be reconsidered.

It’s not enough to hope that in the event of your demise things will all turn out for the best. In reality, if you fail to leave a will the decision will be taken out of the hands of your loved ones and instead assumed by the government. Provincial law then determines who gets – and doesn’t get - what, regardless of what you wanted.

For the sake of those you leave behind, please make it a priority to get your lawyer or a Notary Public to draw up your will.


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