They’re called the “accumulation” or the “builder” years. Those are the 20, 30 or 40 years we work and earn money. That’s when we might buy a home, own a business, donate to charities, dabble in stocks, buy life insurance. Whatever the assets we build up, we want to protect them and pass them down to safe hands.
One way to do this is to write a will and keep it updated. It’s not the most enjoyable of life’s tasks, but it is one of the most important. Yet more than half of Canadians don’t have a will or a power of attorney document, according to a survey by the Angus Reid Institute.
What’s the difference between a will and a power of attorney?
A power of attorney (POA) gives another person the legal right to act for you if you become mentally or physically unable act for yourself. There are two types of power of attorney. One is for your property and the other is for your personal care and health-related decisions. A will, on the other hand, sets out what you want to happen to your estate when you die. A will can also include instructions for your children’s care and support.
What happens if you die without a will?
If you don’t have a will, the law decides who will manage your estate and who will get it. It won’t be your decision or your family’s. This means your estate may not go where you want it to. For example, a larger share may go to your spouse. Your spouse and any children or other descendants then share the rest. A clear outline of your wishes, set out in a will, can help avoid family disputes.
There are six important issues to consider carefully when writing your will:
1. What happens to your “stuff” after you die?
The person named to manage your estate is called the executor. That person is responsible for your estate after your death. That means looking after who gets what and making sure all your debts are paid. Most people name their spouse as executor and list a family member or close friend as a back-up. You can name more than one person as your executor.
2. Who will look after your kids?
It’s usual in a will to name guardians for children under the age of majority. That’s 18 or 19, depending on your province or territory. It’s common to set up a trust in your will to support them. That means putting someone you trust in charge of the money you leave for your children. The trustee will handle their money for them until they’re old enough to manage it themselves. But, since children are not property, what you say about them in your will isn’t binding. While the courts give significant weight to your will, they don’t have to follow your wishes.
3. What can complicate a will?
Wills can be as simple or as complex as your life. Business owners and people who own shares of private corporations need special treatment in a will. Complicated family issues such as second marriages and blended families also need careful thought. Karen Anne Platten is an Edmonton-based lawyer who specializes in estate planning and administration. She says one of the biggest mistakes people make is not telling their lawyers their entire family stories.
4. What do you own — and how do you own it?
Believe it or not, Platten says people don’t always own what they think they own. You may have sold a property or transferred some your business years ago and forgotten about it. “This is important,” she says. “When you are giving assets away you have to make sure you actually own them." You can hold assets in several ways, including:
- Jointly with right of survivorship. You own something (like a house) with someone else. The other person automatically becomes the full owner when you die.
- Tenants-in-common. You own part of an asset with another person, but you can leave your share to whoever you want.
- A beneficiary designation. You name the person or people you want your asset to go to when you die. This is common for life insurance policies, retirement plans and annuities. (Read more: Why name a beneficiary?)
5. Who will inherit what?
Dealing fairly with children or other dependents doesn’t always mean dealing with them equally. “I’m seeing less equal distribution these days,” says Platten. “One of my clients had three kids. The life insurance money went to the two younger kids because the eldest had finished university and started working.”
Rather than taking a do-it-yourself approach, it’s a good idea to get professional help. Look for independent legal, accounting and tax advice for your estate planning needs. Sometimes those professionals advise their clients to divide their estates using percentages rather than fixed dollar amounts. That’s because an estate’s value changes over the years. If you wish to leave more money to someone privately, you can.
- Ask your advisor for help from an estate and financial planning specialist
- A guide to making your money last for generations
- No children? Here’s how to plan your estate
6. When should you change your will?
It’s important to keep your will up to date. You may need to change your will any time your life changes because of:
- Birth or adoption
- Death of a spouse
- Death of an executor
The law may force your hand: In some provinces, getting married revokes (cancels) your current will. This means if you die before drawing up a new one, you may be treated as having none at all. On the other hand, getting divorced doesn’t automatically revoke your will. Either way, see your lawyer to make sure your estate will go where you want it to go.
NOTE: This article is for your general information only. Sun Life Assurance Company of Canada (Sun Life) doesn’t give legal, accounting or taxation advice to advisors or clients. Before you act on any of the information here, make sure you get advice from a qualified professional. That will include a thorough review of your specific legal, accounting and tax situation.