?A lot of people wonder if they need a will,? says lawyer Fiona Hunter. ?You may not need one if you have no assets, no dependents, and no obligations to anyone,? she says, ?but very few people want to leave distribution of their estate to the government.?
If you die without a will, there are laws that govern distribution of your assets. For example, if you have a spouse and no children, the law says that everything goes to your spouse. For this law, a spouse is anyone with whom you have cohabited in a ?marriage-like relationship? for at least two years immediately before your death. (The definition of a ?spouse? differs from one area of the law to another. For example, a spouse is defined differently in family law and in different areas of estate law.)
If you have a spouse and one child when you die, your spouse will get the first $65,000 of your estate, plus a life interest in the family home (if it is not already registered jointly). The remainder of the estate will be divided equally between your spouse and your child. The same thing happens if you die with a spouse and several children, except your spouse gets one-third of the remainder of your estate and your children share the other two-thirds equally.
If you die without a spouse or children, your estate will go to your parents if they are alive. If they are not living, your estate will go to your brothers and sisters, or to their children if they are not alive.
?In short,? advises Hunter, ?you have no control over the distribution of your estate if you do not have a will. Moreover, without a will, any share of your estate going to your minor children (under 19 years of age) is administered by the Public Trustee and Guardian of British Columbia, not the surviving parent.?
The Public Trustee and Guardian will hold the child?s inheritance in trust until he or she turns 19, then it is all turned over to the child. This is a serious issue for many parents. Will your child be mature enough to handle a large sum of money at 19 years of age? This may be reason enough to have a will.
?If you decide to make a will,? says Hunter, ?there are things you should think about.? Start by considering these issues:
· Who you want to be the guardian of your minor children (children under 19 years of age). You should also think of an alternate guardian in case the first one can?t act or doesn?t want to act as guardian.
· If the guardian will have to alter his or her lifestyle in order to raise your children (like buy a bigger home), you should consider giving the guardian a gift of money from your estate to make that possible.
· Who you want to be the executor of your estate. The executor is the person who ?steps into your shoes? when you die and is responsible for winding up your estate. You should get the consent of the person you want to act as executor. Although it is a great honour, it is a significant responsibility and many people don?t want to take on that role. You should also appoint someone as an alternate executor in case the first one can?t act or decides not to accept the position.
· Executors are entitled to be compensated for their role. Be sure you explore this issue with both the executor and the lawyer who is preparing your will.
· To avoid conflicts of interest, the guardian and executor should be different people.
Every adult should think about creating a will, advises Hunter, not just the elderly or those who are ill. You do have significant control over what happens to your estate when you die, and you should be aware of the issues, especially if you have children.
Fiona Hunter is a lawyer with Horne Coupar in Victoria. She practices exclusively in the area of wills, estates and elder law.
The purpose of this article is educational in nature. It is not intended as legal advice. It offers general information only. If you have a legal problem, you should seek professional advice.