Everyone should have a Will. A Will becomes even more important where you have assets (i.e. own a home, have businesses etc.), have a spouse and/or children. By not having a Will, you effectively lose control over who gets your estate, how much and when. You also give up the right to appoint an executor of your choice to administer your estate as you direct in your Will and you also give up the right to appoint a guardian of your choice for any minor children you may have. If you have those rights, why not choose? A Will is the ONLY way to ensure your wishes get carried out YOUR WAY.
If you die without a Will, your assets are held by the government and will likely be distributed in a manner contrary to your wishes. Your assets will be distributed under the Estate Administration Act as follows:
- If you have a spouse and no children, all of your Estate will go to your spouse;
- If you have a spouse and one child, your spouse will receive the first $65,000 from the Estate, the household furnishings and a life interest in the family home. The remaining assets will be split between your spouse and child;
- If you have a spouse and more than one child, your spouse will receive the first $65,000 from the Estate, the household furnishings and a life interest in the family home. The remaining assets will then be split with one third going to your spouse and the remaining two thirds being divided among your children;
- If you don’t have a spouse, your estate will pass to your children. If any of your children died before you, leaving their own children (being your grandchildren), then their children would take equally the share that would have belonged to your deceased child;
- If you have no children or grandchildren, then your parents (or the survivor of them) would receive your estate;
- If your parents are already deceased, then the estate goes to your siblings;
- If you have no surviving siblings, then your estate is divided equally among your nephews and nieces, but if there are none, then it’s left to your other relatives based on a table of family connections that shows how they are related to you.
The distribution becomes more complicated with more complex family situations.
Executing an up to date Will that reflects your current wishes will not only provide you with peace of mind, but it will minimize the costs of probating and administering your estate, which in turn will maximize the inheritance your beneficiaries will receive. You can go through this simple questionnaire to see the types of questions a lawyer will ask you when you are consulting him/her about your Will. You will see how easy it really is to get your affairs in order by preparing a Will:
1) Your full legal name (as the Testator).
2) Your Residential Address / telephone numbers / e-mail address.
3) Your Date of Birth.
4) Your Place of Birth.
5) Full legal names of all children, their dates of birth and current addresses.
6) Your first choice of Executor and Trustee. For most couples, each of you will usually act as “Executor and Trustee” for the other. Confirm and provide full legal name(s), addresses and relationship of your first choice of Executor and Trustee.
7) If your first choice Executor and Trustee cannot act for any reason, who do you want to act as your alternate Executor and Trustee? You can also list a third alternate. (Children are often appointed as alternate Executors and Trustees. They can act solely or jointly with other children – all must be over the age of 19. Siblings, close friends, trust companies, etc. are also often appointed as Executors and Trustees.)
8) If both Testators (parents) die, who should act as Guardian(s) of your minor children?
Provide full legal names, addresses and relationship to you. If first Guardian(s) cannot act who should act as the alternate Guardian (back-up plan)? Provide full legal names, addresses and relationship to you.
9) List any specific bequests (i.e. gifts of money, land, vehicles, personalty, etc.) that you wish to make.
10) After specific bequests are paid out, you need to decide what to do with the Residue of your Estate (the residue is everything that is left after paying taxes, debts, and payment of any specific bequests). In most cases, if one spouse dies everything goes to the surviving spouse.
11) In most cases, if both spouses die the residue is then paid to the surviving children in equal shares.
12) If you have minor children, trust terms are established whereby your Executors and Trustees are empowered to hold the respective shares of your minor children in trust until they reach a certain age (during this time – they are able to access and use the funds for your children’s maintenance, welfare, education and benefit). How old do you want your children to be when they receive their inheritance (minimum age is 19)?
13) If any of your children die before you or before they come into their inheritance, you can provide for “gift-overs” so that if your children have children of their own (your grandchildren), your pre-deceased child’s share is paid to their children (your grandchildren) in equal shares (and held in trust until the grandchildren turn 19). If there are no grandchildren, then the share is generally paid to your surviving children in equal shares. This method of distribution ensures each branch of your family is treated equally.
14) If you and your entire family die in an accident (your worst case scenario), who are your ultimate beneficiaries? For example, pay half of my Estate to my surviving siblings in equal shares and half to my spouses’ surviving siblings in equal shares. Or, pay to specified charities (provide names and addresses if known), or pay to specified individuals (provide names, relationships and addresses if known).
15) And finally, do you prefer burial or cremation? Any special instructions? Organ donation? Scientific Research request?
This is provided as information ONLY; it should NOT be construed as legal advice. Everyone’s situation is different. The above is a very simple family scenario. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning/incapacity planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or [email protected]. Vanessa practices in the area of Wills and Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.
