Updated: Feb 4, 2022
Drum roll please......You should have a Will if:
1. You have children under the age of majority.
Having a Will allows you to appoint a Guardian for any minor children. In the absence of a Will, children may end up being put in foster care or split between relatives.
2. You believe your children are not responsible enough to inherit your entire estate at the age of majority.
Under current laws, your children will legally be the owner of the entirety of your estate (your house, investments, insurance policies, vehicles, savings, etc.) when they reach the age of 18 years (in Alberta, Saskatchewan, Manitoba, Ontario, Prince Edward Island ) or 19 years (in British Columbia, New Brunswick, Newfoundland & Labrador, Nova Scotia, Nunavut, Northwest Territories and Yukon Territory) . There are not too many 18/19 year olds with the foresight or experience to be able to deal with a large sum of money (or even small sums of money for that matter). Having a Will allows you to establish a trust for your children to receive the entire share or portions of their share at an age or ages older than the age of majority.
3. You are in a common law relationship and you want to provide for your common law partner.
Your common law partner may not yet fit the definition of "spouse" under applicable wills and succession legislation so as to entitle him/her to a portion of your estate upon your death. Under most jurisdiction's legislation, a common law spouse who has resided with you for less than three years has no claim to your estate or any portion thereof, which will result in your blood relatives inheriting your estate by operation of law. There is strong financial incentive for blood relative beneficiaries to force your common law partner out of your shared home so they may sell it. This situation can also result in your common law partner being excluded from any sort of memorial or funeral for you. Ask an estate lawyer and they will tell you this happens all too often.
Additionally, there seems to be a common misconception out there by some, that because they are in a "new" relationship, a Will made during an "old" relationship "no longer matters". I will tell you that entering into a common law relationship does not in and of itself invalidate a prior Will made by you. Once you make a valid Will it is legal until you revoke or destroy it. Revoking a Will requires an act of destruction with the intent to revoke. Changing a Will requires paperwork (a codicil) to be added to your Will or creating an entirely new Will. So, if you have previously made a Will with a former spouse or partner, your separation or divorce from that spouse or partner may not have any effect on the validity that Will. For instance, if you made a Will with your former wife 20 years ago and recently entered into a "new" common law relationship and passed away, your Will from 20 years ago is still valid (if you have not changed or revoked it). Hence, according to your instructions in that Will, your former Wife will legally inherit your estate. NOTE: Some jurisdictions in Canada are coming out with legislation to account for this, but that legislation still does not provide protection or support for a common law partner, it only invalidates the gift to the former spouse in the Will, the rest of the Will governs. So if you didn't know your common law spouse 20 years ago, and didn't gift to them in your Will, they will receive nothing.
More importantly, if you are in an "established" common law relationship, meaning that you have co-habitated long enough with your common law spouse that the legislation allows your partner rights in your estate, BUT your blood relatives disapprove of your relationship, you need to prepare a Will. All too often, common law spouses are left in the dark with estate matters including funeral arrangements and must resort to court action and litigation to enforce their rights against any blood relatives that disapprove of your relationship. Evidence must be provided to prove the "established" common law relationship. What type of evidence you ask? Well, evidence that is of a personal and sensitive nature, that proves a sexual relationship, exclusive relationship, etc. This is a very degrading and humiliating process for your common law spouse to go through. If you truly love the person you are with, take the simple steps and prepare a Will to include them. Never assume that the law is on their side even if it appears to be.
4. You are single and have no dependents (you do not have a partner, spouse nor children)
If you would like to gift to someone other than distant blood relatives (as wills and succession legislation provides), you should prepare a Will. Despite what you may hope, friends and charities are not included in the list of those who will inherit upon your death if you die without a Will.
5. You own real estate, real property, mines and mineral rights or have assets in your name solely (those assets are not owned jointly with another person)
Financial Institutions and land titles/land transfer offices require a Grant of Probate/Letters Probate or a Grant of Administration/Letters of Administration be obtained for property that you own in your name only. In the absence of a Will, interested parties, assuming there are any, will be required to step up to the plate and apply for a Grant of Administration/Letters of Administration for the authority to deal with your estate. This may result in lengthy litigation among family members which in turn eats up estate assets. More importantly, the court might end up appointing someone to deal with your estate that you would have been opposed to.
6. You are part of a blended family
Step children are excluded from the definition of children under most jurisdiction's wills and succession legislation and so they will not inherit from your estate. Similarly, if you have begun to co-mingle assets with your new spouse, but have children from a previous relationship that you would like to ensure receive something upon your death or upon the death of both you and your spouse, then you want to consider preparing a Will.
7. If you have recently separated or divorced
Again, there seems to be a common misconception out there by some, that when there is a breakdown and ending of an old relationship that the Will made during that "old" relationship "no longer matters". Although the law in many jurisdictions is catching up to speed with the commonality of separation and divorce in modern day society, there are some jurisdictions that have not. Additionally, there are grey areas in the law. One cannot assume that the act of separation or divorce has any effect on your Will. Once your Will is validly made, it is there to stay valid until you revoke or change it. If you want to ensure that your ex-partner or ex-spouse does not inherit your estate, update or revoke your existing Will to reflect the breakdown in that relationship.
8. You have a child who has special needs
Under many jurisdiction's income support for persons with disabilities legislation (such as Assured Income for the Severely Handicapped or AISH in Alberta) an inheritance over a certain amount can disqualify a person from receiving such supports. When you die without a Will, wills and succession legislation specifies that your children at some point will inherit your estate. The legislation further specifies that all children will inherit the estate equally, regardless of their needs. So if you have a child on disability assistance and another child who is a brain surgeon, they will each receive an equal amount. One child may have more complex needs than others. Similarly, in Alberta, if you have a child on AISH and they inherit $100,000.00 or more, they become disqualified from AISH/the assistance programs. The most important aspect of AISH is not the income support itself, but rather all the other supports that a disabled person receives: the ability to live independently in a group home, health treatments, service animals, etc
9. You want control over who administers your estate
As mentioned previously, in the absence of a Will, interested parties, assuming there are any, will be required to step up to the plate and apply for a Grant of Administration/Letters of Administration for the authority to deal with your estate. This may result in lengthy litigation among family members which in turn eats up estate assets. Most importantly, however, the court might end up appointing someone to deal with your estate that you would have been opposed to during your lifetime. If you want a say in who handles everything you own and who gets to make decisions about your remains, then you definitely need to make a Will.
10. You are happily married. This requires no explanation.
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