When I help clients formalize and legalize their final wishes by way of a last will and testament, I am often struck by the overwhelming sense of relief and peace they seem to feel once the process is complete. And, for good reason! Dying without a will can be expensive, and result in a smaller financial legacy for your loved ones. Why then, do so many Canadians not have wills in place?
I am not sure whether this was the case in past generations or whether it is a result of the looser structure of modern families, but the number one reason I encounter as to why the parents of young children cannot seem to move forward with the important business of their wills is that they cannot decide who should look after their minor children if both parents should die.
However, the number one reason why many people want to put a will in place to begin with, is for the protection of their children's future. Those same children whose future care and custody prevents people from proceeding with a will, are the very reason why they want, and need, to make a will in the first place.
Here are five good reasons to go ahead with your will even if you aren't sure who should take care of your minor children.
1. The designation in your will of a person to have custody of your minor children is only effective for 90 days. This surprises lots of people, but the person you appoint will still have to apply to court to be appointed as the permanent custodian. Your wil then constitutes strong evidence as to what you felt would be in the best interests of your children, but it is not binding on the court. With or without a will, a court ultimately makes this appointment, so there is no reason this single issue should hold you back from making sure your estate can go cost-efficiently and smoothly to your desired beneificiaries.
Your will is important in this regard, but it has other important purposes that should not wait indefinitely if you are uncertain of your children's ideal custodian.
2. You can change anything in your will later, if your wishes change, by making a codicil. A codicil, in effect, is an amendment to your will and is generally short and relatively inexpensive to make. There is a much greater danger in having no will in place, than in putting something in place and having to make a small change to it later. In any event, everyone is encouraged to review his or her will every five years or so to ensure that it is still suitable to their current situation.
3. You may want your executors to be able to use funds in your estate toward the care and education of your children. If so, this needs to be clearly set out in a well-drafted will. If not, two things may go wrong: either your executors may not have the legal power to pay out funds to your children's custodian for this purpose and the money could be unavailable until the children reach the legal age of majority, or the administration and processing of your estate may get hung up in court, delaying your family's access to the funds entirely.
4. Children or no children, estate administration is significantly more expensive where there is no will and court applications are required for the appointment of executors or administrators, and other steps in the administration of your estate. LItigation (going to court) is always the expensive alternative to having a good contract or estate planning document. Ultimately, without a will, more of your estate is going to go to lawyers and significantly less will be left to your loved ones. And nobody wants to see that happen!
5. Last but not least, the most common reason most lawyers will cite as to why you should not put off making your will: a person who dies without a will does not get to choose who his estate goes to or, in fact, who will do the important job of administering the estate. The executor's role is one of great trust and responsibility, and it takes little imagination to envision the problems possible where the wrong person ends up looking after your estate.
For more inspiration on getting this important job looked after, I recommend the article in this link.
Information in this article is intended for general guidance and interest, and is not to be treated as legal advice. Readers should always consult a qualified lawyer with their own particular fact situations in respect of legal advice they may require.