What should be considered when writing a Will and why is it important to have one?
by Rod Mont
A Will is probably the single most important document relating to estate planning. This page cannot substitute for specific legal advice that may be required, but it will attempt to serve as a guide as to what considerations might be made when planning a Will, as well as some general comments regarding the importance of having a Will.
The preparation of a Will may include many of the following considerations:
Who will be the Executor and the alternate Executor? Being appointed Executor can be a very difficult task, depending on the complexity of the estate, and careful consideration is essential.
Who will be the guardian of any infant children? An alternate guardian should also be considered.
Are there any special items that are to be given to a certain person? Should the executor have some discretion when determining which beneficiaries get which items?
Should some of the bequests be held in trust rather than given immediately to the beneficiaries? If yes, under what trust conditions will these beneficiaries receive their share of the estate? Will payments be made to beneficiaries in two or more installments... and at what ages? How much discretion will be left to the executor to pay for such things as post-secondary education or medical expenses?
Where will the estate assets pass in the event that there are no surviving immediate family members? Are there any unrelated people or any charities to be listed as beneficiaries?
As discussed below, none of these considerations can apply if anyone dies without a Will.
Dying Without a Will (Intestate)
There is no law that requires anyone to make a Will. If someone dies without a Will, however, the administration of the estate often takes longer and costs considerably more than the probate of a professionally prepared Will. The person administering the estate and the person caring for minor children, for instance, will be determined by a Court. In addition, without a Will, the estate distribution is determined by a legal formula which may result in the estate being distributed in a different way that would have been chosen in a Will.
A married couple without children, for example, who both die intestate, will have their entire combined estate pass to the closest living relatives of the spouse who died last rather than the estate being divided between both sides of the family! It is also possible to have a former spouse end up with all of an estate in certain circumstances.
What happens next?
This article is for general information only, and should not be relied on as legal advice in any particular case. Consult a lawyer for advice on your case.
If you have any questions regarding estate planning including the preparation of new Wills, call Rod Mont at (250) 753-6435.