Where there’s a will, there’s a plan

Change your will as your life changes, experts say

Making a will is all about the big picture.

“It’s about what you want, how you want your estate managed, and how to achieve it,” says Heather Austin-Skaret, a co-managing partner at Mann Lawyers.

 A will is an essential part of an estates tool kit—the legs that support the entire estate plan. “If someone comes to me and says, ‘I want to make a will,’ I get them to tell me about not just themselves, but their family, are they married or living common-law, do they have children, are they supporting children, their nationality, what debts they have,” says Austin-Skaret. “It’s so important to have all the background information possible. And there are many things that people just don’t think of.”

For example, a person with an RRSP designates their 15-year-old son as the beneficiary. If the person dies before the son turns 18, the son cannot access the money until he turns 18. In this case, having a will can help.

“If your child is a minor, you can establish a trust in your will,” says Austin-Skaret. “You can appoint a trustee to manage your assets until your son reaches a certain age, and you stipulate how the money can be used until then.”

Heather Austin-Skaret. Photo Credit Roberta Gal

A person can include a trust in their will for anyone under the age of 18 or for an adult child who is in receipt of government benefits, such as ODSP, or who is incapable of managing property, says Kate Wright, a partner at Mann Lawyers.

Kate Wright. Photo Credit Roberta Gal

In the case that a trust is not included in a will, money left to a minor may need to be paid into court, and the child will be able to access it at 18, which may be earlier than intended.

Money inherited by someone on ODSP may impact their benefits. If an adult beneficiary is incapable of managing their finances and doesn’t have an Attorney for Property, someone—likely a family member—may have to apply to the courts to become the guardian of property.

Applying to the court to be named a guardian can be a long and costly process; having a trust in a will allows the person with the will to protect the funds for their beneficiary and allows them to appoint a trustee, who manages the trust, meaning less confusion and burden to those left behind.

One area of decision making that can be difficult for parents making a will, is choosing a guardian for their minor children. This is a different role than that of trustee.

“The guardian for a child under the age of 18 makes decisions around health, education and even where the child lives,” says Wright.  This is an important role and one that makes some people delay writing a will.

“An appointed guardian in your will really avoids all the uncertainty about who should be making decisions for your child or children,” says Wright. “And if things change, you can make changes to your will.  A will is a document that should be reviewed on a regular basis.”  

What if you own your own business? “Many people, and lots of millennials, are running their own business,” says Austin-Skaret.

“You should consider using a second will to deal with two different pools of assets,” she says. “You’ll need to know whether the value of the business makes it worthwhile, and whether there is a business partner involved. It can get very complicated.” Austin-Skaret says she knows it sounds like a simple thing to say: “well, one child gets my house, the other gets my RRSP. But there will be taxes to pay on the RRSP in the year that you die. It may be that the money to pay the tax will come from the sale of the house. It could be a real mess and end up not being fair to either child.” Austin-Skaret says people should change their will according to how their life changes. A will as part of an estate tool kit can help avoid conflict. It can also make sure that any child with more needs is taken care of.


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