Benjamin Franklin famously stated, “The only things certain in life are death and taxes.” If that quote is indeed true (and really, how could it not be?), then why don’t more people have a properly drafted will? If death is certain, then a will can provide you with the certainty and peace of mind to know that your loved ones and your assets are taken care of in the ways you decide after you die.
A will (sometimes referred to as a testament) is a legal document that sets out your wishes with respect to your property upon your death. In addition to your property and assets, a will lets you specify what will happen to any minor children that are in your care at the time of your death. Death is already a very difficult and stressful time for the loved ones who are left to cope with the loss; things can become much harder if your surviving family members are unsure of your wishes. In grief, emotions are heightened, and the potential for infighting to break out amongst family members is high. A clearly drafted (and legally binding) will alleviates much of this stress because your wishes are made clear.
In order to ensure that your will is binding, it is best to have it prepared by a lawyer. The law in
this area and the paperwork that can go along with estate administration occasionally gets confusing. If your estate is large, if you own a business, or if you have a property in more than one country, there can be trust issues, tax consequences and international issues. People with blended families will have additional considerations in ensuring that everyone they care about is properly protected.
There are two basic kinds of wills: a formal will and a holograph will. A formal will is entirely in writing and is signed by the person making it. When a formal will is signed, it is done so in the presence of two witnesses. These witnesses will then also sign your will in your presence. This is a major benefit to using a formal will: because they were there, the witnesses can testify as to your state of mind at the time the will was signed if they were called upon to do so. There are some considerations that must be kept in mind when choosing who will act as a witness to your will. Having a beneficiary (a person who is getting something under the will) or a spouse act as witnesses is not a good idea: in general, if a beneficiary acts as a witness to the will, the gift to that person will be void! A holograph will is less formal than a witnessed will, but not necessarily any less legal. This kind of will must be written entirely in the maker’s own handwriting and signed by them. Anyone who is over the age of 18 with the mental capacity to do so can make a will.
One of the first considerations you’ll have to make when drafting your will is who you want to act as your personal representative (sometimes called your executor). Your personal representative, or PR, will be the individual in charge of carrying out the wishes set out in your will. The PR has numerous jobs: they are essentially the administrator of your estate and will complete all paperwork, collect all assets, pay off any debts, and eventually distribute the deceased’s property. It goes without saying that the person you choose to be your PR should be someone you trust and someone who is responsible and organized: the tasks of the PR can sometimes get burdensome.
It’s important to remember that a will doesn’t take effect until you die. In the meantime, you can do anything you want with your property, even if you’ve designated it to go to someone else after your death. You can also change your will whenever you want to, for any reason at all: you just need to follow the same requirements as you did when you initially made the will.
Making a will is completely voluntary – you don’t have to have one, and no one can force you to make one. However, it is the best way to ensure that your final wishes are carried out. If you choose to leave everything to a certain family member, a charity, or even a pet, you can do that in your will, and your PR is bound to carry out your wishes (even if they disagree with them), subject to rights that may be asserted through dependency legislation. You can also dictate what you want your funeral to look like in your will, and your wishes will be performed to the extent that the PR is able to do so. Simply telling someone what you want to happen after you die is not good enough – in order to be certain that your last wishes are carried out, your will must be in writing.
If you die without a will, this is called dying intestate. In Alberta, a person who dies intestate will be subject to legislation that will presume that the deceased intended to leave their property to their family (even if that’s not what they wanted to happen). In addition, since the intestate deceased didn’t declare a PR, there is no one to take control of handling the estate. Someone will need to volunteer to act as your PR, and the courts will need to get involved to approve their appointment as PR. As for your property, there are rules that the court must follow to determine who gets your assets. This situation can get quite complicated, particularly in the case of a deceased who have children with more than one person, or a deceased who has a surviving spouse and a common-law partner. Dying without a will is often far more expensive than the cost of preparing the will. There will possibly be court fees to pay while sorting out who will act as PR; if your family contests the way your estate is to be paid out, litigation can drag out for years, running up legal fees – not to mention the stress your family will endure. A will provides certainty. Where there’s a will there’s a way!
If you have any questions about wills and want to provide certainty and protection for your family and your estate, CONTACT Soni Nayak at SN Law Office for a free consultation.