One of the questions I am most frequently asked by my friends and family members in relation to my work is, “When do I need a will?”. As a lawyer who assists people with wills and estate planning, I cannot stress enough the importance of planning ahead to ensure your loved ones are looked after once you are gone. Especially in circumstances where illness or death comes unexpectedly, having a valid will can provide tremendous peace of mind for you and your family members.
There are some life circumstances that increase the importance of having a will, for example:
1. If you are Not Married, but have a Common Law Partner – If you die without a will, the Intestate Succession Act applies to distribute your Estate and it does not define a spouse as a common law partner and excludes them from benefiting from your Estate. The only way a common law partner would be treated the same way as a spouse is if the domestic partnership was registered under the Vital Statistics Act.
People often misunderstand and think that if they file their taxes as common law partners, then that means it is the same as being married. For purposes of your Estate, if you die without a will, a common law partner does not benefit from your Estate.
The best way to ensure you look after your common law partner on your death is to create a valid will and list your common law partner as a beneficiary. Otherwise, without a will, current provincial law will not provide for your common law partner.
2. Upon Marriage – any previous will you had upon marriage is no longer valid, in accordance with provincial law in the province. When you get married, unless your will was expressly made in contemplation of marriage, your existing will is no longer valid and you need to make a new one.
3. When you Have Children – in the event that you have children and both you and your spouse or partner pass away while you still have minor children, it is helpful to have guardians appointed in your will so they can step in and help look after your children. You also have the ability in your will to make financial provision to assist your guardian in looking after your children.
If both you and your spouse pass, an application can be made to the Court for Guardianship, and the Court will appoint a Guardian, in the best interest of your children, but it may not be the person you wanted to assist you.
Some people hesitate to finalize guardians in their will until they have had all their children, however, this is not necessary. If it is possible you and your spouse or partner may have additional children, wording in your will can be drafted to reflect your wishes for all the children you have at the time of your death, to ensure all your children are looked after.
4. When you Do Not Have Children – If you die without a will, by default shares go to your surviving spouse and children, and if there are no spouse or children, distribution follows a list to continue for next of kin. Most often if a person does not have children, they have very specific wishes that do not align with the next of kin approach in the Intestate Succession Act and it is important that this person’s wishes are stated in a will or the Intestate Succession Act will apply.
5. When you Buy a House and Start to Accumulate Other Assets is also a trigger to consider estate planning.
It is important your will reflects your current circumstances and a periodic read-through of the document never hurts to ensure that your final wishes remain current.