If You Think You Don’t Need a Will, Think Again
We likely know that it’s a good idea to have a will. We might remember seeing those TV advertisements in the 1990s and early 2000s for the Canadian Legal Will Kit, which tried to suggest that making a will was as easy as a trip to the local drugstore. We did not know why a will was important; we just knew that we should have one before we die.
Not only is having a will important, but it’s also something that should be put in place long before we’re ready to think about actually needing it. Even though we shudder to think about death, we can’t typically predict how much time we have on Earth, and life is not always like the movies – we may not be able to quickly “get our affairs in order.”
November is ‘Make A Will Month’ in Ontario, and that’s because it’s so important for Ontarians to have wills in place long before they are necessary. Estate planning lets you decide what happens to the things that matter to you most, instead of someone else making those decisions for you.
Here are some of the most frequently asked questions about wills and estate planning to help put your mind at ease:
Why is it important to have a will?
Think of a will as being your ‘final say.’ There are a set of laws known as the ‘intestacy rules’ that determine what happens if you die without a will, and who should inherit your assets and property based on their position in your family. The problem with those rules is that they do not contemplate your actual relationships, such as an estranged sibling, or a special person you wish to recognize.
If your assets are left to the rules of intestacy, the estate settlement process can take longer and be more expensive, with results potentially out of line with what you want. For example, if you have dependents, you may want to ensure they have more than minimum entitlements; also, you will want to ensure they are left in the care of the person(s) you select. A will is a clear expression of your wishes that your executor can easily follow in order to protect or recognize the persons that matter most.
When should I make my will?
The short answer is – now! There are many joyous life events that should trigger you to put a will in place or to update your existing estate plan. Some occasions that should cue you to this are:
- Buying a home or piece of property
- Having children
- Separation or Divorce
- Owning a Business
- Owning valuable heirlooms
- Family member alienation
Interestingly, until recently, the law in Ontario provided that marriage would invalidate an existing will. That law has now changed to protect against potential predatory marriages; however, other questions (and likely delays in settling the estate) may arise related to the entitlements of spouses in the absence of a domestic agreements (pre-nups). The bottom line: consult a lawyer to make and update your will as circumstances change.
Your priorities may change over the course of a lifetime, but consider your will as an integral estate planning tool that requires ongoing maintenance (review approximately every 3-5 years or upon the happening of one of the events listed above) – it’s not necessarily a “last testament”.
You also want to ensure that there will be no questions later about whether you were of sound mind when creating your will. Ideally, this is why a will should be undertaken before sickness or advanced age can get in the way of clear thinking. Generating your will with a lawyer can be helpful in establishing mental capacity and, of course, ensuring that the will is properly executed, avoiding terms that may later be susceptible to dispute.
What happens if I am still alive but cannot make decisions?
There are situations where, due to illness or injury, you may still be living but do not have the capacity to make your own decisions about your affairs. Along with your will, there are two additional documents that will usually be drafted: a Power of Attorney for Property, and a Power of Attorney for Personal Care.
People often use the term ‘power of attorney’ loosely, but the actual intent of these documents is for a trusted relative or friend to make decisions about your property (finances, assets, real estate, etc.) or about your personal care (medical and health care decisions) when you are unable to make those decisions yourself.
These documents ensure that someone YOU choose makes these important decisions regarding your health and finances in accordance with your wishes.
Can I make my own will?
The short answer is yes, but proceed with caution. One way to do this is with a ‘holographic will,’ which must be written completely by hand, signed, and dated. A holographic will should spell out your wishes and list an executor. But because such wills do not have to be witnessed like a lawyer-drafted will, their validity can be easier to dispute later with questions of authenticity, capacity, undue influence or duress. If there are serious questions about a holographic or do-it-yourself will, a court can declare the will invalid.
If your family finds an old piece of paper on your desk with some wishes scrawled on paper, it is very difficult to prove to a court that this represents your last wishes and that you were mentally competent at the time you wrote the document. Similar problems can arise with do-it-yourself will kits or online tools. A fill-in-the-blank format can be problematic; or, perhaps you inadvertently select a template that does not conform to legal requirements in your province.
Although you may think you need only a basic will, using a lawyer will help you ensure your bases are covered and you will likely be asked to think of things that would not otherwise occur to you – a will kit cannot provide advice fitted to your specific circumstances. There is no “one-size-fits-all” when it comes to proper estate planning. And, perhaps more importantly, the time you spend now may save time and money later.
Who keeps a copy of my will?
Your lawyer can keep a copy of your will, but you should hang on to the original. Of course, that means that your will is one of the most important documents in your home, and you should treat it as such.
Your will should be stored in a safe and secure place that protects it from the elements, such as a fire-safe box or safe. You should also make sure that a person you trust knows where your will is, preferably your executor, and how to access it in case you should pass unexpectedly.
Who makes the decisions about my estate after I’m gone?
One of the core benefits of making a will is deciding who makes these decisions on your behalf. The pattern for decisions without a will mentioned earlier can leave things to relatives that you may not have a close relationship with, or even distant relatives if you have no surviving immediate family.
When you make your will you can appoint an executor, who will be left in charge of distributing your assets and winding up all of the financial matters in your estate. This involves a fair bit of work, so it is crucial to pick somebody responsible and trustworthy who understands the responsibility. Moreover, your executor does not need to be a relative; you can appoint a close friend or even a trust corporation (and it’s always a good idea to have at least one alternate).
This is just scratching the surface. You have more questions, and I am always happy to provide more answers. Contact Lamers Law today to set up a no-obligation consultation to discuss your current estate plan, and what documents you can put in place today to make sure that your last wishes are honoured in the future.