A vital component of estate planning is specifying heirs through a Will. A Will speaks from death, it is a document that specifies the testator’s (person making the Will) intentions of how his assets should be distributed when he is dead. A person who dies without a Will is said to have died intestate.
Some of the reasons why it is advisable for you to have a Will include:
A Will prevents your assets from ending up with unintended beneficiaries. It will ensure that you give what you have, to who you want, when you want and the way you want it. Without a Will, the court will decide who gets your assets, in accordance with the applicable inheritance laws of intestacy. This process usually takes time and can be quite expensive. Besides, because you know your beneficiaries well, you are in a better position than the courts to designate who gets free and immediate access to your estate funds, and who requires supervised access to the funds. In other words, you preserve the wealth for the latter class of beneficiaries.
Also, in order to ensure that your minor children are well taken care of, the Will portion of your estate plan becomes crucial. A Will allows you to name guardians for your minor children. In the absence of this, the courts will appoint guardians for those children. That is, the courts decide who gets your minor children! Of course, the implication of that is all too clear.
In addition, having a Will enables you to pick your executor and to cut down on probate time (as the need for the courts to compile an accurate list of beneficiaries and assets is dispensed with).
Furthermore, proper estate planning can considerably impact on and minimize estate taxes.
In general, estate planning preserves family relationship as the chances of family strife are greatly reduced when you make your wishes known. It eliminates family strife as you will be leaving behind, a legacy and not a mess, when you are gone.
Inheritance: Common law spouse
Common-law spouses do not inherit any of their spouse's property unless it was left to them in a valid will. If your common-law spouse dies without leaving a valid will, the intestacy rules will give their property to their children or other relatives, not to you. So if you are in a common-law relationship each of you must make a will if you want to choose what you want done with your property when you die.
Powers of Attorney are also used to complement Wills. A Power of Attorney is a legal document in which one person gives another person or a trust company the authority to act on their behalf. Powers of Attorney are of two types: (1) Power of Attorney for Property (also called Continuing or Enduring Power of Attorney) - this will appoint someone who will take care of the donor’s assets when he is still alive but he is either not available or he is not capable. (2) Power of Attorney for Personal Care appoints someone who will make personal and health care decisions on the donor’s behalf.
Certain misconceptions about Wills
- “I don’t have that many assets, why do I need a Will?” Wrong! No asset is too small to worry about. If you have a family, a home or savings account, you should get a Will.
- “I have just one spouse anyway, so he or she gets everything and will take care of the children.” This is not necessarily true. The court decides how an intestate estate is distributed and all the assets may not automatically go to the next of kin. Besides, minors’ assets are typically paid to a Trustee until they attain majority.
- “Can I draw up my own Will” Yes you can. However, a professional (solicitor) will always take relevant legislation into consideration that may impact the dispositions being made.
Bose Fagbure is a Barrister, Solicitor & Notary Public of the province of Ontario. She is the owner of, and principal counsel at Trinity Law Office. She practices law primarily in the area of Wills and Estate Planning and has practised for over 20 years, both outside and in Canada. Though her office is located at City Center Drive, Mississauga ON. (tel. 905.267.3368), she offers accessible legal services, meeting her clients all across the GTA and Halton areas. www.trinitylawoffice.ca