Do you have a will?
In a recent study by Leger Marketing, only 49% of Canadians have a will. This means that the other 51% of Canadians would die intestate. What does this mean? Essentially, it means that the Intestate Succession Act governs your estate. This Act has a very limited scope of action, and its standard provisions may be unacceptable for your personal needs and peace of mind. This may cause potential problems and is very risky for the loved ones you leave behind. Plus, there is no executor appointed, which leads to costs, delays, and frustration. Intestate means that:
- You can’t choose who your beneficiaries will be;
- You can’t choose who will administer your estate;
- You can’t plan your estate to minimize taxes;
- You can’t choose a guardian for your children.
So the question remains, do you have a will? If not, why?
As a financial planner, I know that the will is a very important document in retirement and estate planning. However, to give you more details, I went to an expert. I recently had a conversation with Avideh Musgrave who is a Wills and Estate specialist at the Ritchie Mill Law Office.
What is a will?
According to Avideh Musgrave, “A will transfers your assets to your beneficiaries after you pass away. It gives you control over the assets that form your estate. Only a will allows you to specify where your estate goes after you pass away.“
When is the best time to get a will?
In the same information by Leger Marketing, it was found that the older you get, the more likely you are to have a will. In fact, 91% of Canadians over the age of 65 have a will. If you are under the age of 45, there is a less than 20% chance that you have a will.
For Musgrave, she obviously feels there is no better time than now. Musgrave talks about some significant events that can trigger motivation to think abut getting a will, “Consider will planning when you acquire a significant asset (like a house); when you get married, remarried or even enter into a common-law relationship; when you have children; when you separate or divorce. All of these events should get you thinking about your will.“
Is it fine to use a legal will kit?
Most lawyers will obviously agree with Musgrave when she says that, “You get what you pay for“. Musgrave adds, “These will kits often start with large disclaimers that state you should seek a lawyer for advice.”
A will is a complex document that is worded very carefully and considers the unique circumstances of each person’s estate. A properly drafted will deals with things that may not be included in a standard form will, such as tax issues, trusts, charitable giving, executor’s compensation, special needs beneficiaries, Assured Income for the Severely Handicapped (AISH), second marriages, and step children and adopted children. These are issues that are not dealt with in a standard form will. Having your “final say” usually requires legal advice tailored to your situation.
What should I do with my will?
You should keep your original will in a safe, waterproof, and fireproof place, preferably in a safety deposit box. You may wish to give a copy of your will to your executor, or at least inform your executor of the location of the original.
How often should you review your will?
Change can trigger the need to review your will. Sometimes changes will occur in the life of the individual and change can happen quickly. Also, the laws governing Wills and Estates change quite frequently, and so it is also wise to have your lawyer review it every two years.
My two cents
The will is the cornerstone of your estate plan. If you do not have a will, make sure you think about all of the consequences of dying without a will. If you need a will, make sure you seek the help of a lawyer, preferably a lawyer that specializes in the wills and estate field. I certainly believe that while not everyone needs a will, more than 49% of Canadians should have a will. Having been witness to many estates, I know that the cost of a will can be a whole lot more economical than the legal bills that can come out when someone dies and problems occur. A properly drafted will might be one of the best investments you can make.
Too many people do not have wills or they are not written properly or updated as needed. I have seen many families torn apart by this after their parents die. I have first hand experience of the tragedy of losing both parents at the same time and then losing my family due to the estate battle. I have often heard: MY KIDS WON`T FIGHT. They will more than likely fight and the damage often can`t be repaired.
Many lawyers have commented on this but I have yet to find a book written by a lay person who has experienced this devastation. This will happen more and more as the boomer parents continue to pass away. Please do not be caught in this situation. Nobody should have to go through this.
Thank you for your message, Cathy.
I have a will (done and certified by a laywer 10 years ago.
My concern is that 10 years have passed and in two occasions when I asked my lawyer is the Will should be reviewed and updated he told me is not a need to do so.
But many things happened in 10 years: I got legally separated, I sold my old house and bought a new one, same with my car, etc… I feel restless because I think the will must be updated with that new information.
I will appreciate Jim advice on this. Maybe I should pressure my lawyer to update the Will or change the lawyer.
Ana – find another lawyer; one who can be trusted! Interview until you find one you feel comfortable with.
Any major change in one’s life requires a new will or a codicil, depending. Your lawyer did not give you appropriate advice OR you did not explain the major changes in your life well enough.