I wrote this article over a year ago, but I feel it needs to be repeated. This past week, a relative died who had never married, had no children and left no will. To further complicate matters, he was the only family member living in the city of Ottawa, so we knew absolutely nothing about his affairs. I hope this article will encourage all of you, to write your wills and Powers of Attorneys for Personal Care and for Property. This newsletter will be in two parts due to its length.
Where There’s a Will, There’s a Way: Part 1
An Angus Reid study in 2019 found that over 57% of Canadians don’t have a will. I find these statistics rather scary. Life is so unpredictable. Because I feel so strongly about the importance of having a will and powers of attorney for everyone from the age of twenty-five and beyond, I decided to share some thoughts and observations I have witnessed throughout my life regarding these legal documents. Some of you will already have these papers in place, but for those who haven’t done this exercise, it is definitely something to think about. The purpose of this Senior’s Corner write-up is simply to inform you, and then to encourage you to do your own research on these topics.
A Last Will and Testament is a document that expresses an individual’s wishes with respect to property and dependents AFTER they die. In your will, you appoint one or more individuals to be the Executors (or Trustees.) Their job will be to collect all property and assets at the time of your death, to pay off estate debts and to distribute the remaining property and assets to the beneficiaries according to the terms of the will. Executors are also responsible for carrying out all other wishes you have outlined, such as instructions regarding funeral arrangements, burial or cremation, etc. Your Will also states who you have appointed as guardian for any minor children or dependents that were under your care at the time of your passing.
A Power of Attorney takes effect while you are ALIVE but are unable to manage your affairs for either physically or mentally incapacitated reasons. There are two types.
1. Power of Attorney for Property
This gives the legal authority to whoever has been named in this document, to manage your financial affairs and to sign any documents that you would otherwise sign.
2. Power of Attorney for Personal Care
This document relates to matters regarding your health, what medical care you wish to receive and when, plus issues pertaining to your general personal care. This document comes into effect only if you become incapacitated or unable to speak on your behalf (example you are in a coma or experiencing the effects of Dementia, etc.) At this time, the person or persons you have appointed will convey your expressed wishes in this document to your health team. (I have gone into more detail in a piece I wrote titled, “Powers of Attorney for Personal Care. Do I need one?” If you wish a copy, please e-mail me and I will send it to you. lyndapilonauthor@gmail.com)
What happens if you do not have a will?
Dying without a will is referred to as “dying intestate”. First of all, the government does not take your assets, however, they don’t make it easy for next of kin to settle your affairs. It will require a considerable amount of time, work, and money, not to mention stress, before your estate can be distributed. Unfortunately, dealing with the legal system and the government mean delays. Having a will just makes life so much simpler for the family left behind.
The first task. Someone will have to apply to the courts to be appointed as the ‘administrator’. (If no-one steps forward, the court will appoint a public trustee.) Unlike an Executor, an Administrator needs the court’s permission before he can do anything regarding your estate. (more delays) The Administrator must follow strict guidelines set up by the government using provincial laws. Your personal wishes don’t exist if a will does not exist.
Your assets and property will be divided amongst your surviving spouse, children, and certain other blood relatives according to a set formula under the Succession Law Reform Act. (Friends do not qualify to receive any proceeds from your estate.)
If there is no surviving parent, the court will decide on a guardian for your children, and it may not be the choice you would have made.
Why do people not draw up a will?
There are many reasons or excuses why this paper work is not done.
Young people think:
– they don’t have enough assets to worry about who gets what. WRONG!
– dying is an event way in their future, so they will draw up a will later.
– dying is a difficult topic to discuss. They don’t want to think about.
– they cannot afford the cost of a lawyer to do this legal work.
– a will is not that important for their age group. They don’t realize what the consequences are for those who die intestate. (guardianship of children, etc.)
For older people:
– Most of the reasons stated above apply plus
– Time has slipped by, and they just never got around to making a will.
– They simply lack the knowledge on how to go about getting a lawyer. They are stressed out just thinking about it.
– They think, “The kids know what I want to do with my stuff. I’ve told them all enough times.” Maybe so, but without a will, it doesn’t matter. Courts decide.
I have had experiences dealing with and witnessing situations involving the very young and the elderly when it comes to the subject of wills.
I wanted our kids to get wills at an early age, but for many of the reasons I have listed above, this did not happen. Finally, when they were around 28 and 30 years of age, I took matters into my own hands. For Easter that year, Chuck and I gave our two children and their spouses an Easter gift they will always remember. Each was handed an envelope and on it was written the message, “Where there’s a will, there’s a way.” The card inside contained a date, a time and the address of our lawyer’s office. Chuck and I had made appointments for all four of them to have their wills and powers of attorneys drawn up. Now I could relax. The task was getting done.
On the other end of the spectrum, I had a senior friend who did not have a will. How sad it was to see her on her deathbed with a lawyer breathing down her neck, trying to get her to sign papers before her time expired. The stress placed on the dying person was cruel. And really, how much thought was put into the terms of the will? Were they really her wishes or the wishes of the person pushing for the signature? Did she even know what she was signing? Better planning could have made this nightmare not happen.
My next newsletter will discuss things to consider when making a will.
