Having The Will to Make A WILL

Sometimes it just happens – you wake up one morning thinking about your “What ifs”.. maybe that nagging feeling was triggered by hearing about an untimely death of someone famous on TV. Or maybe you had trouble sleeping last night, feeling some chest pains and hoping it’s not signs of a heart attack, that it’s just heartburn from the loads of BBQ you ate over dinner. Or maybe you had that major disagreement with your partner the other day with regards to his screen time and not helping you with chores, feeling your stress levels go up, afraid it might lead to cardiac arrest. Whatever the reason may be, you can’t help but think what will happen to your kids, your properties (if you’re one of the lucky people to have one), or your financials in case something bad happens to you.. then perhaps it’s about time you sit down and think about making your own will.

What is a will?

What is a will anyway? And how is it different from other legal documents such as power of attorney (POA)? A will is a legal document that states how your assets will be distributed after your death. As defined by the Ontario Ministry of the Attorney General, “(a) person’s will is a written document that sets out the person’s wishes about how his or her estate should be taken care of and distributed after death. It takes effect when the person dies.”  To make it sound more official, a “last will and testament” allows you to have your say after you have passed away. It has no powers whatsoever when you are alive. The legal document that is binding while you are still alive is the power of attorney (which was discussed in my previous blog).  Therefore, the two key things that you need to remember to differentiate the documents: POA – alive, Will – dead.

Who are the main characters in a will?

  • Your Beneficiaries

The lucky people who will be named in the distribution of your assets are called “beneficiaries”. The items going to the beneficiaries are called “bequests”. Everything that you own – your jewelry, your collection of bags, your house, your insurance, your cat and all other assets that you may have is called your “estate”. A bequest can be a sum of money such as “$500 to my nephew John”, or an object – “my collection of LV bags goes to my grand daughter Ann”, or a percentage of your estate – “30% of my estate goes to my son Adam”. You can be this specific or you can make your executor’s life less complicated by simply dividing your estate equally – “my entire estate to be divided equally between my son and 3 daughters”.

The distribution of your assets is basically made up of a plan, but you should also have a plan B in your will in case your main plan cannot be executed for whatever reason. Usually your will should say something like “leave my entire estate to my wife, Gin, if she survives me. If my wife Gin dies first and does not survive me, then divide my entire estate in equal shares between all of my 3 children”. Your will should be written in such a way that no matter what happens in the future, there is a plan for your estate.

  • Your Executor

This is the person you assign to carry out the instructions in your will. You can choose your best friend (and hope that he/she will live longer than you) or a close family member to take on this role, but keep in mind that this person must be trustworthy, reliable and has the patience to work with your beneficiaries (presuming you do not want any drama right after your die). They are also the ones responsible to arrange your funeral, gather and secure your assets, and distribute them to your beneficiaries according to the instructions in your will.  You may hire a law firm or a lawyer if you feel that you do not have a friend or relative who can take on this responsibility.

  • Guardians for your Children

I know this sounds so cynical and morbid, but if your spouse will also be unavailable for your minor children, like if you were both involved in a car accident, or if you are a single parent, then you need to assign somebody to take care of your children. In reality what happens is that if neither parent is available, then a judge at the family courts will appoint a guardian. Hopefully, a concerned relative or friend will come forward and offer themselves as the guardian and the judge will grant guardianship to the family member or person that he/she considers to be the best person to look after your kids. As a parent, you can ensure that by making a will you can appoint someone to be your kids’ guardian and this would be the over-riding factor in the judge’s decision, together with any appointment made in the child’s other parent’s will. If this person is still willing and able to serve as the guardian, then the judge would most likely grant guardianship to him/her.

What will happen if you die and you do not have a will?

Death may happen when you least expect it. It’s a sad reality that we need to keep in mind.  When you die without a will, you are said to die “intestate”.  This basically means that the Succession Law Reform Act in Ontario sets out how the estate is distributed, which unfortunately may cause more problems, delays and additional unnecessary costs. And I am saying this in all seriousness.

So, when is the best time to make a last will?

In all honesty, I think there is no right time to create a last will.  Thinking about your future death or illness and making all these boring appointments and asset distribution is no fun.  But not having one is worse. The people you care the most will have to face more difficulties and challenges in the future if that happens.  Studies show that majority of Canadian adults (< 55%) do not have signed & legal wills. Based on the study, the reason why Canadians do not have one is because: (1) they do not know how to get started, (2) they believe they are too young to have one and (3) they think they do not have enough properties or finances to distribute anyway. If you are one of those people, then it’s about time you act and do something about it before it’s too late.   

If you have questions or violent reactions, you can always drop me an e-mail: eaguilar@jcalaw.ca.

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