Wills

Why should I make a will – my last will and testament? Although there are many reasons to make your last will and testament, the most important are: 1) general family reasons; 2) appointment of legal guardians of children; 3) to take advantage of tax savings; and 4) to prevent problems for the people you left behind.

Although age is a factor to make a last will and testament, it is neither the sole factor nor is it the most important factor in making the last will and testament. A person should make the last will and testament when a person reaches a milestone. Some of these milestones are:

1. Obtaining a major asset (e.g. purchase of a home)
2. Upon marriage, civil partnership, cohabit or find a partner to whom they wish to leave their assets.
3. Upon becoming parents – Should review the existing will upon the birth of a child
4. Children are capable of leaving the home or have left the home
5. When nearing retirement
6. Changes in financial circumstances
 

In addition to the distribution of the assets, the last will and testament should include Powers of Attorney. The Powers of Attorney will enable the testator (person making the last will and testament) to designate the person or persons who would make decisions or handle the affairs on his/her behalf if the testator is not able to for reasons such as health.

There are numerous misconceptions people have about the necessity of having a last will and testament. Some of them are: 1) A Will is NOT NECESSARY because my entire estate will go to my spouse; 2) My estate is below the estate tax threshold; and 3) All of my entire estate will go to my partner because I have been living with my partner for more than two years.

Within the will, the testator can place conditions to the gift. For instance, the person can say the money is to go to my children upon the child turning twenty one. Many people like to place such a condition in the last will and testament as a way of ensuring that the child will not spend the gift frivolously.

Intestacy

A person who dies without a will is said to have died intestate. An intestate estate is administered by the Laws of Intestacy. Consequently, the deceased has no discretion as to who inherits the assets.

In an intestate estate, the deceased will have no control of who will be the children’s guardians. The guardians will most likely be the closest relative.

Intestate estates are more difficult to administer than estates where the deceased did have a last will and testament is because there is undue delay in getting approval from the Probate Court as to who distributes the assets of the estate. This delay can result in the family unable to meet the day to day expenses.
 

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