A Will is one of the more recognized tools in the personal planning toolkit. Most people know the basics of what a Will does but many have not followed through on having one drafted for themselves. It may be that you own a home, have a couple of bank accounts, and a vehicle. This sets the stage for the “simple Will” as many do not think that it would take much to deal with this type of estate. While a Will can seem “simple”, it is actually a complex document with potentially far-reaching implications for those you leave behind.
Why Do I Need a Will?
From a legal perspective, a Will is essential if you care about who carries out your final wishes and how they do so. Also, if you have children and both you and the other parent have passed, it is important to name someone as Guardian for your children. This is particularly important if you have a preference of who you would prefer to look after your children.
When you pass away without a Will to manage the estate, also referred to as passing “intestate”, your loved ones are left to apply to the Courts to be appointed as administrator before they can even begin to administer your estate. This means that your home, bank accounts, and any other assets will sit in limbo, unless held jointly with another, until someone applies and is appointed as administrator. Questions over joint tenancy and your estate plan will be dealt with in a later post. This removes your control over who is to distribute your assets.
Further, without a Will, the administrator will follow the government’s rules for who is to receive your assets rather than distributing them how you would have liked. For example, John is 63 years old and has never married and never had children. Both John’s parents have passed away. He is estranged from his brother and has not spoken to that brother for 25 years but has a good relationship with his sister and his nieces. John’s intention was that his sister and nieces would receive his estate but he never made a Will expressing this intention. Under the law in BC, John’s brother would receive an equal share in his estate because he passed away without a Will.
Your Will is a guide to those you have left behind as to who should benefit from your estate and how they will benefit. For many of us, we care what our loved ones receive from our estate. We also care who is tasked with the burden of making sure our wishes are carried out. This leads to some interesting conversations when estate planning to ensure that there is little to no dispute once we are gone.
What Should be in My Will?
The considerations are varied and specific to each person’s situation. If we think back to that “simple Will” scenario, when there are not too many assets that need to be dealt with, the “who” considerations becomes the more important component of the estate plan.
First, who should be the Executor? Many people instinctually name their spouse as the primary Executor and a child as the alternate. There is no right or wrong answer. What is most important is that it is someone who you trust to carry out your wishes. If you have a highly conflictual family, it may be worth appointing a neutral and independent party who is not a beneficiary, such as a good friend. Being an executor is a job and the person doing it must be one who is up to the challenge.
Second, who should be a beneficiary and what should they receive? A spouse and/or children must be considered as beneficiaries as they are the only two classes of beneficiaries who could challenge your Will if they do not feel they have been provided for. Questions of disinheritance and Wills variation will be addressed in a subsequent post. For now, it is important to ensure that your Will adequately provides for those who you are thought to owe a legal or moral obligation to.
If you do not have a spouse and/or children, there is greater flexibility in how you distribute your estate. Leaving a legacy or trust for charitable foundations is a good option or maybe you have relatives that could benefit from your estate. What is important is that you come to these decisions informed and without influence from those around you. A Will is one of the most personal and important documents that you will sign and it needs to be reflective of your intentions and wishes.
If you have questions about your current Will or do not have a Will in place, contact our office for an appointment to discuss your estate planning needs.