Ever met someone who said, “I simply must get my will done today?”
Neither have we.
There are plenty of understandable reasons for avoiding this potentially unpleasant but essential chore. It involves confronting one’s mortality, making potentially tough choices about who gets what and it means running up a legal bill for a few hundred bucks for something that, frankly, you will never see the benefit of.
But making a will is a vital part of estate planning.
You may think that your assets would be automatically equally divided after you die, with money and other assets going to, first of all, your spouse, then your kids and so on. Well, think again.
If you leave this world without a will that means you have died “in intestacy”, meaning a probate court will decide who gets what from your estate. And that will be expensive both in time and costs, not to mention emotionally difficult.
Beyond the morbidity factor, people postpone this important task because they think their estate is too small or simple.
“People love to think things are simple because in their mind making a will seems straightforward,” observed Lynne Butler, who has been practicing estate law for 30 years in St. John’s, NL.
“But everyone who starts up a conversation with me, nine times out of ten, they say things are very simple. Which I know means, don’t charge me a lot of money because you don’t need to.”
An essential part of making a will is deciding who will be your executor. This person’s job will be to carry out your wishes. And if you die in intestacy, the court will appoint one.
While you want to be fair to your near and dear ones, there are limits to equality. You shouldn’t take a shotgun approach to appointing the executor – you should take the time you need to choose the right one.
“The idea of appointing all your kids as executors because you want to treat them equally is wrong – where you want to treat them equally is as beneficiaries,” said Butler.
She also advises against do-it-yourself will kits, since “people don’t know the legal terminology, and they don’t have experience with it.”
But moreover, she said it’s important to talk things through.
“One of the things I always talk about with estate planning is your goal here,” said Butler.
“You think I want a piece of paper with WILL written on the top. No, the value is to go through the process to find out what issues are going to be, who is going to be involved, what can I do now to make this run better.”
Butler added that working with a lawyer can also straighten you out on so-called living wills, a document that would spell out what sort of treatment, if any, you would want in the event of a major medical emergency.
For starters, she would disabuse you of what you think a living will is.
“There is no such thing as a legal Living Will in Canada, it’s an American phrase,” she said.
“What we generally have in Canada in provinces and territories is vastly different place to place. But in each case, you nominate somebody to be the person to be your spokesperson/decision-maker. So the first step to protecting yourself is to get it written up in the correct form.”
Next, you want to appoint someone to ensure your wishes are carried out. But generally, speaking it shouldn’t be the same person you have nominated to have power of attorney.
“It’s not always a good thing to have the same person because there is potentially gain for them,” Butler said.
“The gain might be financial, the gain might be that it’s just easier for them.”
That may sound cynical, but when it comes to estate planning, it’s important to be realistic.
“People say to me frequently, how can you stand your job, talking about death and so on,” said Butler.
“Well I don’t spend my life talking about death, I spend my time talking about planning. So these things are going to happen and if it’s going to be me, then I want to be ready so that my family is not going to be standing on my beside, family on one side saying we should give her what she wanted and others saying, you can’t do that to mom.”