Why I Need A Will

By: Konstantine Chatzidimos

At  Schwarz Law LLP we are very concerned about our clients’ wellbeing. We look at ourselves as being in the same kind of position as the old fashioned Family Doctor. Although we have various specialists we try to be the “Family Lawyer” ensuring all of our clients’ needs are attended to. We are often asked why a person needs a will. We have tried to provide a simple point form overview as why we think every adult should have a will.

• When you make a will, however, you are in control.  This means you will decide who gets what you leave behind. You will name the executor who will administer your estate and you, will select the Guardian who will look after your minor children.
  Since an “intestate” person is a person who dies without a will, and as a result does not appoint a personal representative (an executor or administrator), there is no person to act immediately upon the death of the intestate person.  This could result in delays in administering the estate and corresponding delays in your family members getting their inheritances or worse yet being able to arrange your funeral.
  IF you die without a will, somebody must apply to the court to be appointed as the  deceased’s “personal representative”; and this may not be the person the deceased would have wanted or trusted to manage their estate. This could be dangerous because the “personal representative” is given broad powers by the courts to manage the estate which include liquidating assets and investing money.  You can see here how the wrong person in this role can compromise the inheritances of your loved ones.
• Dying without a will ensures that you will have absolutely no options as to how your estate is divided on your passing
• When both parents die without a will -> The Children’s Aid Society will step in and place the child or children in foster care while the courts consider applications for guardianship.  The parents, of course, have no say in who the guardian would be in a case where they have no wills.
• If no one is prepared to become a guardian for the child or children, the Children’s Aid Society would keep the child or children in foster care indefinitely until a permanent home could be found.
• How would the inheritance of minor children be dealt with if there is no will -> In this case, the child’s share of the estate will be kept by the government who will hold that child’s share, in trust, in a special account, until he or she turns 18 years of age.
• If income payments out of the child’s share of the estate are required for the care of that child, the guardian (who has been selected by the court and not the parents) will have to formally apply to the government for such payments; an administrative headache which could have been easily avoided with a will.
• The entire inheritance will be handed over to the child at age 18 – regardless of whether or not the child is mature enough to manage their full inheritance.  With a will, however, a clause could be drafted in which your child may not see any of their inheritance until age 25 – or possibly even later.  This will help ensure they are mature enough to not spend it all at once.
• The law does provide for the disposition of estates where one dies without a will; for example, it provides that children get equal portions of the estate of their late parents.
• Because the law tries to treat everyone equally, there is a chance, however, that it may not treat everyone fairly.  For example, in a situation where someone is survived by only her two sons, it may not be in the best interests of her children to each get an equal amount of their late mother’s estate.  One son may have married into significant wealth while the other may be unemployable due to a disability.  This presents just one of many possible situations where the deceased’s wishes may not be realized in the absence of a well thought-out will.
• Another thing to realize that without a will if you have specific desires about how you are to be treated after death they may not be realized (i.e. cremation)
• A well drawn will is an essential element of any estate plan.  The will allows people to have an active part in planning their post-mortem objectives:
                      a)  To provide for the welfare of one’s family;
                      b)  To distribute one’s assets (with minimum tax consequences);
                      c)  To secure the efficient management of one’s property; and,
                      d)  To secure the continued preservation of property (to the extent possible) once it has been transferred to the beneficiaries.

I hope this helps you understand that planning for the future is critical to assisting those you love and making sure that everything is taken care of in the event of someone’s untimely death.  Further planning now will allow you to plan so as to minimize tax and fees and achieve the goals you wish.