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Why should you have a Will?
By having a legal document in place for when you die, you save your loved ones a great deal of time, trouble and expense at an emotionally difficult time for them. Your Will appoints an Executor, the person who is in charge of the estate. The Executor can deal with your bank accountants and investments, home and other real property you own and all the rest of your assets and debts. The Executor will look after dealing with your pension, life insurance, business, MPI claim, litigation, income tax and any other claims you have.
If you die without a valid Will, your next-of-kin may need to apply to the court for Letters of Administration in order to be in charge of the estate. Not only will you have no say in who the Administrator is, but your loved ones will need to hire a lawyer and pay for an expensive court process.
A Will also provides your loved ones with your directions as to who should inherit your estate. You can choose relatives, friends or charitable organizations as you wish. If you die without a valid will, The Intestate Succession Act will decide who receives all of your assets.
Why should you have a lawyer prepare your Will?
Wills made entirely in a person’s own handwriting, signed and dated are legal (they are called holographic wills). When writing up your own Will, you may miss important sections, such as the appointment of an Executor. A partially or entirely typed will is not legal unless it is signed and witnessed properly as set out in The Wills Act. By having your Will drafted and executed by a lawyer, you will know that it is done legally and properly.
As well, a conversation with a lawyer is important for estate planning and to make sure you are aware of the other laws that may prevent you from doing what you would like to do with your assets. For example, getting married can void your Will unless it is made “in contemplation” of marriage. Assets owned jointly may have a “right of survivorship” and not form part of your estate. Investments or insurance with a designated beneficiary may also not form part of your estate. Disabled children should have their inheritance in a specific type of trust so as to not disentitle them from government benefits. Your spouse has a claim to an accounting of your estate even if you have left them out of it. Legal advice is an extremely important part of estate planning.
Before you attend a meeting with a lawyer to get your Will drafted, how should you prepare?
Bring a copy of any current Will or Power of Attorney that you have. Decide on an Executor and an alternate, and make sure the people you have chosen are willing to act in that role for you. Consider who should be your Power of Attorney, and the alternate. Bring an outline of your major assets including any owned jointly with others. Think about who you want your estate to go to, and at what age the beneficiaries will be before they inherit.
From there, we can talk with you and make sure the Will drafting and estate planning meets your needs in your particular situation.
Should you name a guardian for your children in your Will?
Most parents of minor children will state their wishes as to who will care for the children. However, that clause in your Will is not legally binding. In the event of your death the person you choose still has to apply to the court for an Order of Guardianship. Other people can apply as well. The Judge would consider your wishes to be persuasive but will ultimately make a decision in the best interests of your child.
In your Will are you required to leave anything to your children?
No, you aren't. There is no legal obligation to leave all or part of your estate to your children but if you fail to mention them at all it could raise a question as to whether you are of sound mind. Also, if your children are still minors, they could make a claim against your estate for financial support.
Call 204-727-2424 or send an email to info@patersons.ca to book an appointment for a Will during April 24 to April 28, 2023, and receive 25%* off!
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