Put simply, your will is a statement of what you want done with your property when you die. It is also the document that designates someone to raise your children if you and your spouse die together. If you have dependent children, it could be the most important document you'll ever sign.
Your will protects your family in the short term by giving them the money they need to pay monthly bills quickly and easily should you die. A properly drafted will goes much further, anticipating future needs such as your children's — or grandchildren's — schooling. It can also greatly reduce the income taxes your estate must pay.
A well drafted will anticipates some key questions: What if you and your spouse die at the same time? What if the person you appoint to carry out your wishes (called an executor) is unwilling or unable to do so? What if your beneficiaries die before you?
Everyone over 18 with assets of any kind should have a will. Yet a recent survey commissioned by the Trust Companies Association of Canada shows that half of Canadian adults do not.
Not a DIY Project
Because a will is a legal document, it is best prepared by a
lawyer. Indeed, some provinces do not recognize handwritten, or holograph,
wills. Do-it-yourself wills, such as those prepared on forms from a stationery
store, can end up costing your estate many times more than you save.
The cost of having a will drawn up depends on the size and complexity of your estate. A typical fee for a straightforward will is $200 to $300; someone who has married for a second time, owns a family business and has property offshore, can expect to pay more.
Preparing Your Will
Because your will may be the most important legal document you'll
ever sign, you will likely want to have it drawn up properly by a lawyer.
While this will cost $200 to $300 (for a basic will) you can save money and time spent with your lawyer — and help ensure your will is complete — by doing some preparation.
Distributing Your Assets
If you are married, sit down with your spouse and discuss how
you want your assets to be managed and distributed. You may decide to leave
everything to each other, but what if you both die at the same time? How
will your property be handled? What if your children die before you?
Select a Guardian
Decide who you would like to raise your children should both
you and your spouse die. Consider a potential guardian's age, other children,
professional responsibilities, and location. Discuss your wishes with your
top candidate and be sure they are willing to accept the responsibility.
Obtain their full address and full legal name.
Tax Considerations
Ensure you have arranged your affairs to keep income taxes and
probate fees to a minimum; for example, name your spouse beneficiary of
your RRSP or RRIF to take advantage of the tax-deferred rollover. Determine
whether you will have enough cash in your estate to pay your final tax
bill — which could be much larger than you think — or if assets will have
to be sold to achieve this.
Choosing an Executor
Give careful consideration to choosing your executor. Ideally,
the person will be trustworthy, have good business sense, be able to handle
the paperwork, and be living nearby. Choose an alternative executor in
case the first one cannot do the job. If your estate is substantial, you
may want to appoint your spouse and a trust company as co-executors.
List Your Assets
Although you do not need an inventory of everything you own,
it will be helpful to list assets such as your home, cottage, rental properties,
business interests, life insurance, and registered savings plans such as
RRSPs and RRIFs. You will also need to mention special gifts — such as
a stamp collection or your grandfather's gold watch.
Beneficiaries
If you intend to bequeath property, make sure you own it outright and
not jointly. Jointly held property automatically goes to the surviving
partner when you die.
If you plan to leave money to a charity, make sure you have its proper
name.
Check whom you have named as beneficiary of your RRSP, RRIF and life
insurance policies.
Will trusts be needed to provide for your dependents? If so,
who will act as trustee? Do you have dependents with special needs?
If you have children from a previous marriage, will they be provided
for if you leave everything to your current spouse? What will happen to
your children's inheritance if your spouse remarries?
What if your children divorce? Do you want to include a special
clause to prevent their former spouses from claiming a share of the income
earned on their inheritance?
If your estate is large or complicated — or if you have a family
business — it would be prudent to get specialized tax and legal advice.
Wills and Marital Status
Once you have made a will, it is important to review it regularly.
This is especially important if your family situation changes.
Marriage
In most provinces, if you get married, your existing will is
automatically revoked. The only time this isn't true is if you state in
your will that it was drawn up in contemplation of marriage. If your will
becomes invalid due to marriage and you die, unless you make a new will,
the court will rule that you died intestate, with all the negative consequences
that brings.
Divorce
If you divorce, any bequests to your former spouse will be revoked,
and your former spouse will not be able to act as your executor. This is
not the case if you are separated.
If you are making child support payments, you may want to revise your will to set aside assets or take out an insurance policy to cover the payments after your death.
People who are separated should revise their wills if they start living in a common-law relationship. Otherwise, you run the risk of your entire estate going to your estranged spouse — and your current partner being left out in the cold.