A Will is a legal document that allows you to set out what you would like done with your estate after you die. Your estate consists of any land, house, money, investments, personal items and other assets that you own. Note that your estate will generally not include assets you own jointly with another person, or assets that you have named designated beneficiaries.
Appointing an Executor
One of the important components of your Will is to appoint a person to be the executor of your estate. The executor will be responsible for securing the assets of your estate, paying your debts and taxes, and dividing what remains of your estate among the beneficiaries. In most cases, people will appoint a son/daughter, friend, relative, professional or trust company to act as executor. In some cases, it will make sense to appoint more than one executor to act together as co-executors. It is also important to appoint an alternate executor in case your first appointed executor predeceases you or is unable to act.
Appointing a Guardian
If you have minor children, then a Will can be used to appoint a guardian for your minor children in the event of your death before they become adults. In most cases, people will appoint a sibling or parent. When considering the appropriate guardian, it is important to consider where your guardian lives and if they have the means to take care of your children.
A Will allows you to decide who you would like to benefit from your estate, and to what portions. In most cases, beneficiaries may be your spouse, children, siblings, friends or charities. It is important to note that you have legal duties to provide for your spouse and children under the Wills, Estates and Succession Act. We would recommend speaking with a lawyer if you are considering leaving your spouse or a child out of your Will.
If you die without a Will
Without a Will you lose control over the administration of your estate. Firstly, you will not be able to decide who acts as your executor (called administrator in this circumstance). This means that a family member will have to step up to apply to the court to become administrator of your estate. Otherwise, the Public Guardian and Trustee will be forced to get involved. Secondly, you will lose control over who is to benefit from your estate. Under the Wills, Estates and Succession Act, there is a formula used to determine who gets what if you die without a Will. This formula may or may not be how you would have wanted your estate to be divided.
Dying without a Will can also be more expensive for your estate. It is more likely that there will be a dispute of some kind, and if the Public Guardian and Trustee gets involved, then their fees can be substantial. Moreover, by setting up your Will, you can establish an estate plan around it, which usually involves taking steps to minimize tax liability and minimize grounds for dispute. Without taking these steps, your estate is likely to pay much more in tax and potential legal fees and court costs then is necessary.
Have a Will already?
If you already have a Will, we would recommend reviewing it every few years to make sure that it is current and there are no changes required. For example, your executor or guardian may have moved or may no longer be able to act, or a beneficiary may have passed away.