Most people know how important a last will and testament is, especially those who have children. If you die intestate (without a will), you're essentially gambling your possessions away and risking your children's well-being. Here's why every parent, and most single people, must have a will and some unusual circumstances you should be aware of before signing the document.
Parents With Property
Whether you're a new parent rejoicing in the arrival of your baby or you've been at it for a while, it's never too early--or too late--to plan for you and your child's future. In fact, if your children are still minors, now is the time to get your affairs in order. Here's what a will allows you to do in order to protect your children and your assets:
- Name a guardian for your child. No one wants the government to decide what will happen to their children or who should raise them. A last will and testament allows you to name the guardian of your minor child.
- Name a property guardian. A property guardian will manage the home, money, and other assets for your child, according to your specifications, until he or she is of legal age. This will protect your child's welfare and ensure his or her needs are being met.
- Name an executor. This person executes the will by taking care of the estate, paying off taxes and debts, and then making sure everything left over gets distributed to your beneficiaries.
Parents Who Don't Have a Will
If you have children and you both die intestate, the provincial government will decide how to distribute your property and who will take care of your little ones.
It won't matter if your uncle verbally agreed to raise your children or if you've typed up a quick note and saved it to your hard drive on your computer. If it doesn't meet the legal criteria for being a last will and testament in your province, your wishes may not be respected. The only document that trumps this scenario is an insurance policy which allows you to name beneficiaries. By law, those must be honored.
Having said that, there is a chance that someone close to you may come forward, like a friend or family member, and apply to be an administrator. This could be someone who knew you intimately and would strive to carry out your wishes. But if not, your local province will appoint a public trustee to administer your estate. And a public trustee's job is not to try and figure out what you would have wanted, but rather to do what the law says.
Disinheriting a Child
There are special situations for those who want to exclude a child from their will. Suppose you have multiple children, one of which you have nothing to do with. If you don't want them to inherit any of your assets, you can't just leave them out of your will.
The simple act of not mentioning their name still gives them a right to claim some of your property. If you don't want them to have a claim, you must make a statement to this effect in your will. This can be a challenge to do, and there must be a legally valid reason for a disinheritance.
Furthermore, the courts may not honor your wishes if there isn't a good reason to exclude the child. In other words, you cannot disinherit them just because you don't agree with their choice in partners or their parenting style. An attorney can help you determine the validity and strength of your argument.
Married with Stepchildren
Canada does not recognize stepchildren as legal heirs unless you have adopted them. Even specifying in your will that you want all property to be distributed among your children, stepchildren will not be included. You must specifically name them as beneficiaries in your will.
Singles and Special Cases
Most people automatically assume that if they are single, they don't need a will because their province will decide how their personal property and life savings will be divided. While this is true, there are special considerations that must be made and certain circumstances to consider. You shouldn't dismiss the idea of getting a will just because you are single.
For example, suppose that "Bob" is a single 25-year-old and has a half sister named "Mary" on his father's side. Mary is handicapped and needs round-the-clock care. Bob never considered getting a will since he doesn't have children or own a home. However, he does have about $10,000 in a savings account. Bob dies, and the government awards his savings to his only surviving parent: his mother. But she is unwilling to share the money with her ex-husband's daughter, Mary. If Bob had drafted a will, he could have named Mary as a beneficiary, which would have been helpful given her circumstances.
Whether you're single, married, widowed, have young children or have no children, you should consult with an estate attorney to determine your individual needs. Contact an estates lawyer for assistance.