I get asked this question a lot. It often includes something along the lines of “Won’t my stuff be given to my family anyways?” or “Won’t my family know what I would have wanted?” Well, maybe. In reality, these questions are often more complicated than they seem.
Those of you who watch Downton Abbey may remember the confusion and uncertainty in the Crawley household after Matthew’s untimely death, before his holograph will was found. This kind of confusion is not uncommon where a person dies without a will, but it is also easy to avoid by taking the time to draft a will while you’re able to do so.
In the following points I’ll discuss some of the main benefits of having a will (and problems caused by not having a will):
1. Through your will, you get a say in what happens to your “stuff” after you die
If you die without a will, there are laws in place to determine how your possessions will be dealt with. If, for example, you’re married with kids, a pre-set share (currently $200,000 in Ontario) will go to your spouse, and anything left over will be divided among your children. The rules go into detail about exactly how this works depending on your situation, basically always looking to progressively more distant family members if there are no living relatives in a closer branch.
This may be what you want to happen, but it does raise a few problems. For one, these rules do not include common law spouses. If you’re in a common law relationship, this law would bypass your common law spouse when distributing your assets, effectively cutting them off. There are other ways they could receive something (such as property owned as joint tenants with you, or applying for support as a dependant), but these options either need to be set up while you’re alive, or will cost your common law spouse extra time and money, which could have been avoided if you had provided for them under a will.
Another problem with depending on these rules is that your loved ones will have to bear the added costs and delay of applying to Court for the authority to deal with your assets, which leads us to benefit number two…
2. Through your will, you can give the person of your choice the authority to deal with your assets
If you own property, assets, or a business you should have a will, as your will gives the person you name as executor the authority to deal with your assets and wind up your affairs. As I mentioned above, if you don’t do this, someone will have to apply to Court to obtain the authority to do so. This will of course add to the costs and time involved in dealing with your estate, which means that your loved ones will have to wait longer for their share and that share will likely be smaller than it may have otherwise been.
If you own a business, it is also important to make a succession plan for the business, which can involve specific provisions in your will as well as agreements specific to the business.
3. Through your will, you can have a say in who will have custody of your children, and how any money they may inherit may be dealt with
If you have children, there are a number of things to consider and be aware of relating to the process of appointing a guardian for your children, but I’ll cover these in a later post. For now, I’ll just say that a will gives you the opportunity to have your say about who you would like to care for your children if you’re unable to do so.
Your will also allows you to determine how any money your children inherit from you should be managed and used (preventing it from having to be paid into Court until they turn 18, for one), and at what age they should gain control of it themselves (if later than age 18). Again, I’ll cover these issues in greater detail in a later post.
4. Your will can help prevent arguments among your loved ones over your wishes after you’re gone
Even the most close-knit family can find themselves in the middle of unexpected arguments over the wishes of a family member who has passed away. While there may be no way to avoid these kinds of arguments completely, having a will can help to prevent them. In relation to the points above, for example, a well-drafted will can help prevent arguments by giving you the opportunity to:
- Make sure you don’t unintentionally leave out people you may have wanted to leave gifts for, or who might have expected to receive a gift or support;
- Name the person (or people) you would like to administer your estate, as this can often be an area that causes disagreement and accusations of unfairness, while your careful choice of a suitable person can help to smooth over these disagreements (also watch for this issue to be covered in a later post);
- Name the person (or people) you would like to take custody of your children, as this can also be an issue fraught with disagreement, especially if the parents in question have not made an initial decision (and talked to the potential guardians about it!). The worst case scenario here may lead to the child(ren) getting caught up in the foster care system because no one could agree on who should have custody, or no one stepped up or was available, etc. Hopefully it would never come to that for your children, but it’s so important to make this decision and discuss it with your potential guardians, and to update your decision (via updating your will) as circumstances change.
Making a will is an immensely important investment in the future of your loved ones. It’s true that it often involves uncomfortable conversations and situations you’d rather not think about, as well as taking up time and money in the short term. However, the benefits of having a well-drafted will in place far outweigh the discomfort and hassle of the process (as can working with a lawyer you’re comfortable with).
Obviously, losing a loved one is often a very stressful and emotionally exhausting time in anyone’s life. You can take a huge weight off of the shoulders of your loved ones and help to avoid the problems I’ve mentioned above by setting out your wishes in a will now, while you’re still able to do so.
Hopefully your will won’t be needed for years to come (and, I should note, should be updated regularly as circumstances change), but being prepared will make things far easier for those you leave behind if the unthinkable should happen.
Please note that nothing written in this post should be considered to be legal advice. For personalized advice on your particular situation, please contact me for an appointment and I would be happy to meet with you.