It’s one of those things that you’ve probably heard about, maybe even put your mind to, but never actually got around to doing. Maybe you have no idea what one of these really does, or what happens in case you don’t have one. Or maybe it’s just a matter of superstition. Whatever the reason may be, you may want to think twice before moving this critical item off your To-Do List and think about pushing it to the very top. Here’s ten simple reasons why writing your Will should be done sooner rather than later.
1. YOU LOVE YOUR FAMILY
Put simply, writing your Will is an act of love. It means you’ve thought about the fact that your life won’t last forever, and that at some point someone will be left behind. Somehow or another they’ll have to deal with wrapping up your affairs – which could mean everything from selling your assets to filing your taxes.
You’d be more than mistaken if you think that dealing with these things happens simply and without some clear authority to do so. The Land Registry Office won’t just change title to your property without a legal certificate indicating who’s in charge, and you bet that banks won’t just be opening your accounts and letting anyone withdraw the contents either.
So who will that person, or those people, be? Well, if you write your Will then you’ll get to choose the Executors who will do that for you. If not – well you could be leaving a minefield of conflict between family members who simply can’t agree on who will take on that role.
Have I mentioned that dealing with these things after death is probably the last thing most people want to do? It’ll be hard enough to deal with the fact you’re gone, then to also deal with how you would have wanted it and who would do that best.
Writing your Will gives your loved ones direction and a road map at a time when they need it the most.
2. YOU WANT A SAY IN WHO GETS WHAT AND HOW
On the flip side, maybe you don’t want your family to inherit absolutely everything if something does happen to you. Perhaps some members may be closer to you than others, you would prefer an unequal distribution, you have friends who are close to you, or you have charitable objectives that you would like to see fulfilled instead. That won’t be achieved if you don’t get to writing your Will while you are fully capable of doing so.
See, if you don’t write your Will and you pass away, you’re said to have died intestate. When you die intestate the government can’t really decide on who should have received what and whether someone was closer to you then others. To get around this the government simply drafted a formula of what relatives would be entitled to in the case of intestacy. Needless to say, friends and charities aren’t on that list. The formula also won’t account for who you may have wanted to prefer either.
3. YOU OWN PROPERTY
If you own property you better believe the Land Registry Office will need the official executor’s court granted certificate to legally accept any transfer of title to anyone else’s name after death.
Sure, people ask us all the time about owning property jointly to avoid the ordeal of going to a court for a certificate. This may be good in some circumstances but it could also open up a can of worms if planned incorrectly. There are things such as capital gains, uneven distributions, loss of control and creditor issues to think about that often outweigh the benefits.
Holding property jointly also doesn’t account for the possibility of being the last survivor – a chance that personally I don’t think is worth taking in many scenarios.
4. YOU HAVE MINOR CHILDREN
For almost any parent out there, taking care of your children is the foremost reason that drives life forward. From the innocence of infancy to the rebellion of adolescence, setting the right path with the right tools and provisions is so very important in shaping the lives of the adults they will become.
Financially there are things to think about. What if something happens to me? Will they be taken care of? Will there be enough to put them through school, enroll in sports programs, or go to summer camp? These are all good reasons to evaluate the financial aspect of things and to obtain insurance policies to cover any shortfalls.
Dollars and cents, however, aren’t the only things to think about. Who will look after that money? How will they use it? At what age (or ages) will your child have free access to it? But the most important thing of all…who will look after your children?
It’s interesting to note that guardianship of minors is divided legally between the physical and the financial. While generally the state won’t want to swoop in and take physical custody of a minor, when there is an inheritance involved, on the other hand, and no one has been appointed through a Will to look after it, the government automatically has jurisdiction to act as the guardian to that minor’s property. The inheritance is placed in a low interest yielding account, any payments needed prior to the age of majority must be approved by their office, and at the ripe age of 18 the assets are outright handed over to the (no longer) child. Not typically the circumstance you would expect to leave your child in, nor what we’ve seen any of our clients wanting for theirs.
Of course, a court order may be obtained to appoint someone else in charge of the minor child’s inheritance, but it won’t be as cost effective as having written the direction yourself. Not to mention, you won’t be involved in the matter at all.
5. YOU’RE IN A COMMON-LAW RELATIONSHIP
It’s no doubt that the law has made huge strides in recognizing the rights of common-law couples. Make no mistake, however, the protections afforded under law to these relationships are not uniformly defined nor are they automatically protected.
In the case of succession, the reality is that there is no automatic provision for common-law spouses. In the case of intestacy (dying without a will) a common-law spouse does not have any automatic right to your assets – which means on the face of things, they get nothing. Now, there are a multitude of cases that provide for the strong case that a common-law spouse’s contribution to the household, to business or the increase in value of assets must be accounted for, and there is some comfort in that. The right, however, is not automatic.
What does that mean? If you are in a common-law relationship and you pass away without a Will, you’ll leave your partner contending with your blood relatives as to why he or she should be entitled to your assets. Whether there are cases that have proved the rights or not doesn’t change the fact that the case will still have to be made, by lawyers, possibly in court, and often not peacefully. Ask yourself how much you love your partner to risk leaving them in that position. Then ask yourself how much a fight like that would cost.
6. YOUR FAMILY IS LIVING OUTSIDE THE COUNTRY
As I mentioned before, when a person dies intestate the government sets out a formula for who is entitled to their assets. Those people (or their representatives) must then agree on who will take charge of the process and be appointed as the executor of the estate.
When we have family that live outside the country and who are entitled to a share of the assets this can easily become complicated and costly. Either the family members must travel to handle the affairs themselves, or appoint someone to do that for them. In the cases of a foreign executor the Court may also request security be posted in the form of a bond two times the value of the estate – to ensure the assets are not absconded with outside of the country.
7. YOU HAVE CHARITABLE OBJECTIVES
While giving to charities can always be done when you’re alive, often we would like to share the gift of giving even after we are gone. Without a Will, there is no legal obligation on anyone to do that for you. Writing your Will gives you the opportunity to be as philanthropic as you’ve always dreamed of being.
Not to mention, the receipts for such gifts can help reduce the tax burden on your estate too!
8. YOU OWN A CORPORATION OR A BUSINESS
Owing a corporation which has a significant amount of value or assets provides for a great tax planning strategy using multiple Wills. By dividing assets into different Wills, not only can we divide the processes and people dealing with different classes of assets – we also reduce the estate administration tax payable.
See, when a Will is submitted to the courts in an application for a Certificate of Appointment of Estate Trustee (formerly known as probate), the assets under that Will must be declared, their value given, and tax paid before the court will issue a certificate. The certificate is crucial to accessing assets (such as bank accounts) or selling property.
In the case of private corporations, however, no Certificate is needed and these assets can be excluded from a Will and dealt with in a separate one. This means that their value can be excluded from the application dealing with assets that actually need the certificate – and thereby reducing the tax payable by your estate.
Writing a separate Will for your business can also help plan for the longevity of the business going forward, allowing you to provide details on how you want the company to run without you.
9. A BENEFICIARY IS ON ODSP
Ontario Disability Support Program (ODSP) provides social assistance for people with disabilities. For those that have been accepted under the program, or who knows someone who has, you’ll know that the process of approval isn’t always so simple or expedient. You’ll also know that the benefits that the program provides go far beyond a monthly paycheque, but extend to a wealth of medical supports – from medication, to devices, therapy and beyond. The program is also based on income.
When a beneficiary under ODSP receives an inheritance, this inheritance is considered income and must be reported. Once reported they can easily be kicked out of the program, lose a wealth of benefits and support, possibly blow through the entire amount, and find themselves struggling to re-apply and be accepted once again.
By writing a Will, however, this beneficiary’s portion can be placed in trust to be administered by someone who can provide additional assistance, while protecting the beneficiary’s entitlement to ODSP. Protection well worth planning for.
10. YOU SEPARATED BUT NEVER GOT A DIVORCE
So, you ended the marriage and never really got around to filing those papers? It seemed tedious and unnecessary, given that maybe you never really cared to get married again, or you didn’t see the value in paying the legal fees. A second thought at this reason may have you changing your mind.
Whether or not you’ve separated or even if you’ve moved on with another relationship, if you’re still legally married to someone and you pass away with out a Will, that person is entitled to your estate. If you didn’t have children, then they’ll be entitled to all of it. If you did have children, they’ll still be entitled to the first $200,000.00, and then they’ll split the rest equally with your children.
There have been many a court battles over this one, and something a Will can most certainly protect you from. If you think that might be unfair – maybe it’s the right time!
If any of the above points relate to you, it’s important that you take the time to plan the future. A short amount of time now not only saves you and your loved ones financially, but provides the peace of mind of knowing that things have been taken care of. There’s nothing that’s worth more than that.