The only thing worse than dying, is dying without a will.
Jack and Jill Jones are among the many Victoria couples that have never had a professionally prepared will. They’ve thought about it often enough, but haven’t taken the step because – like a lot of couples – they avoid discussing the spectre of death during the prime earning and family years.
This avoidance can make things significantly worse for loved ones. In fact, many families experience considerable conflict in the absence of a will or dealing with a will that is out of date.
The Joneses didn’t think they had significant assets and that they were too young for a will. When we sat down with them and did a projected estate net worth they were shocked to discover the combined value after all personal assets, insurance, shares of Jack’s private company and the various death benefits were taken into account. In Sandra E. Foster’s book, “You Can’t Take It With You,” she lists the top 5 reasons why people have not prepared an estate plan:
- You aren’t concerned about taxes
- You don’t care who will look after it for you
- You are not old enough
- You are immortal
- Your family members always cooperate with each other
Seeking Legal Advice
A professionally prepared and up-to-date will provides a blueprint for the orderly and equitable distribution of your estate allowing you to name beneficiaries of your choice. Lawyers provide guidance and advise you on the implications of the Wills Variation Act of British Columbia. They can also advise you on the consequences of dying intestate (without a will). Although “off-the-shelf” will preparation software is available, we always recommend seeking professional legal advice.
The Joneses met with a lawyer and provided us authorization to speak with her directly. This communication was important as we ensured that the final will was consistent with their estate plan. We noted through discussions with the Joneses that their biggest concern was what would happen if they both passed away at the same time.
Designating a Legal Guardian
It was important to the Joneses to know that their children will be cared for if both were to die. A family member was willing to be designated the legal guardian in this event. Seeking professional legal advice ensured they had the appropriate clause appointing a legal guardian in their will. The Joneses also expressed a need to have a trust to postpone a portion of the children’s inheritances beyond the age of majority, which is 19 in British Columbia.
Appointing an Executor
The lawyer discussed the general duties of an executor, some of which are time-consuming and complicated. Jack and Jill both felt comfortable assuming these duties and naming each other as executor. We also discussed the services of a Professional Estate Administrator. The Professional Estate Administrator would only be used in the event that both passed away or if the surviving spouse declined to serve as executor. In addition, on the second passing the services of a Professional Estate Administrator would be used. They both appointed a Professional Estate Administrator as the alternate executor.
Before meeting with a lawyer to establish or update a will we recommend that you consider the following:
- value of your estate (listing of assets)
- how you want your estate distributed upon your death
- who you would appoint as executor
- who you would select as the alternate executor (if the first executor pre-deceases you or declines)
- who you would designate as a legal guardian (if you have children)
The above information will provide you with a head start in having a professionally prepared will. Having a will that reflects your wishes should reduce potential conflict amongst beneficiaries and ensure the most tax efficient distribution that is consistent with your overall estate plan.
As the year comes to an end, we recommend that you consider the most basic of legal documents as your first New Year resolution.