I am continually amazed at the number of clients I interview who tell me that they don’t have a will and never have had one. This situation can be disastrous for them. If they die without a will, they will have no say over how their estate is distributed or the guardianship and welfare of their children.
I received a copy of the article below in an email newsletter. I found it very informative and helpful when discussing with clients their need to create or change their wills now that they are separated or about to remarry.
Reprinted in full with permission:
Mon Sep 27 2010
Byline: Dianne Nice
First comes love, then comes marriage, then comes a review of your will.
Failure to do so could leave your loved ones empty-handed when you pass away, says Barry Fish, a wills lawyer and co-author of Where There’s an Inheritance: Stories from Inside the World of Two Wills Lawyers.
“We have reviewed many wills where a person’s will was dated in the 1990s and, several years later, that person entered into a marriage. It invariably comes as a shock to people in this position when we tell them that their marriage has revoked their will and that they have no will at all,” Mr. Fish says.
“The opposite situation arises where a person who is separated is often surprised to learn that his or her separation does not revoke the will that he or she had made while still married to the person from whom they separated.”
Mr. Fish also advises those who are separated to double check their beneficiary designations on life insurance policies, RRSPs, RRIFs, TFSAs and deferred annuities. “These, too, must be changed, in addition to the will, if the separated spouse is no longer to be named on them. The will alone will not effect such a change.”
Here are some other things Mr. Fish says to keep in mind when reviewing your will:
1. Have a backup plan. You need to name a replacement in the event that your executor dies, becomes ill or is incapacitated, otherwise someone will have to apply to the courts to do the job. The same applies to beneficiaries: If you don’t name a backup beneficiary, with some exceptions, the law may decide what happens to your gifts.
2. Count your blessings. Have you had any children since you wrote your will? If so, you’d better make sure they are included as beneficiaries, or risk having them cut out completely.
3. Protect your child’s inheritance. While the inheritance you leave your child is protected from a divorcing spouse, the growth on that inheritance is not. Be sure to include a family law clause to protect the income and capital gains made from that inheritance in the event that your child separates or divorces after your death.
4. Take stock of your assets. Outdated descriptions of your assets can create confusion when you die. If your will says “123 John Street” goes to your child but you have since moved, your child does not automatically get your new property. You need to include the phrase “any home I’m living in at my death” in the bequest.
5. Leave no grey areas. Ambiguous wording in your will can lead to more than one interpretation. If you leave one child your “antiques” and the other child questions the meaning, they could be headed to court.
6. Protect your disabled child. Some parents leave outright bequests to children who are on government disability support plans, unaware that this can put these benefits at risk. By including what’s called an absolute discretionary trust in their wills for the benefit of their disabled children, parents can protect them from losing governmental disability benefits when the parents die.
7. Plan for death and taxes. If you hold shares in your own company, you have the right to make two wills. One will covers their company shares and the other will covers everything else you own. When done correctly, the dual will structure can save significant probate tax on the value of the company shares.