ELORA – See a lawyer and write your will. It’s the only way to have control over who will receive your assets when you die.
It’s that simple, says Greg Oakes, a lawyer based in Elora who has written his share of wills for clients.
“If you have a will, then right away your family is in business without having to wait for the court.
“If you don’t have a will, then your family has to apply to the court to be appointed the estate trustee,” he said.
That adds time and cost to the process at a time that’s likely emotionally difficult for whoever is handling the matter.
When someone dies without at will, they’ve died intestate, legalese meaning they’ve left no instructions.
And that means the government decides how to divvy up your assets.
Oakes said a new law came into effect on March 1, 2021 and now, “basically the government will decide,” he said.
Without a will, your estate will be distributed according to the Succession Law Reform Act.
If you have a spouse and no children, your spouse inherits everything. That’s a legally married spouse by the way and not a common-law spouse.
If you have a spouse and children, the spouse gets a “preferrencial share” as spelled out in the Act and your children get a portion, also spelled out in the Act.
The Act sets out several scenarios if there’s no spouse or children – parents, siblings, nieces and nephews would be next in line to receive your inheritance – but if there is no next of kin, no family to inherit your wealth, the money goes to the government.
“Not all families are Ozzie and Harriet,” Oakes said. “You often need a will if there are issues with family law.
“A will gives clarity. If there’s no will you have to go to court. And you can spend a lot of money on courts and lawyers.”
Oakes said a lawyer’s training will ensure the correct language is used so your wishes are clear.
Lawyers can also offer guidance about assets and tax considerations with dispersing your wealth.
You can stipulate who gets the antique rocking chair, the prized family portrait – even your secret cookie recipe if that’s what you want.
And with a will, you can ensure a portion goes to your favourite charity. Without a will, none of that will happen.
“The cost of writing a will is relatively cheap,” Oakes said. “Think of it as cheap insurance. Everything will get done promptly and according to your wishes.”
In a will, you assign your executor – the person who will take on the finances and completing all the paperwork after you die.
“You want to choose someone who you trust,” Oakes said.
This is also a good time to appoint a power of attorney (POA) for personal care, and for finances.
A personal care POA would make personal care and medical decisions on your behalf should you become incapacitated.
A financial POA would take care of your finances and assets in a similar scenario.
“You could be in a serious accident or have a stroke,” Oakes said. “People tend to think about this when there’s a serious operation coming. Hospitals like to see you have a POA ahead of time, just in case.”
Oakes suggested having a chat with your family before and after you’ve written your will, “so there are no surprises.”
Parents of young children are wise to name a guardian for their kids in a will, so the government doesn’t make this decision as well.
And obviously, update your will as laws and life circumstances change.
“You can minimize the tax burden on your survivors. You can be specific about who gets what,” Oakes said.
“I don’t blame people for not wanting to think about it,” he continued.
“But it’s something you need to have, or you’ll leave your loved ones with a problem that could be avoided.”
