Why Do I Need a Will?
To my mind, there is one primary reason for a person, of any age, to have a Will – you decide what happens with your estate and who deals with it, not the government.
If you die without a Will in Saskatchewan, you leave your estate exposed to two Acts: The Intestate Succession Act and The Administration of Estate Act.
The Administration of Estates Act comes into play because you have not appointed an Executor by a Will. An Executor is a trusted person who is appointed in your Will to deal with your assets, pay your debts, and distribute the estate to whom you direct. If there is no Will, there is no Executor. Who then has the authority to deal with your Estate? No one; until someone makes an application to the Court and the Court decides. This process is lengthy and expensive, and there is a priority structure among your relatives that may result in a person being appointed as administrator that you would not have chosen yourself. And what happens if no one wants the job? The government steps in, and you can be assured they will take their cut.
When you die without a Will, The Intestate Succession Act provides a priority structure for distribution of your estate. In brief (and incomplete) summary, the structure is as follows:
1. If you have a spouse and your estate is worth less than $100,000.00, your spouse will get the entire estate, even if you have children.
2. If you have a spouse and no children* and your estate is worth more than $100,000.00, your spouse gets the whole estate.
3. If you have a spouse and one child* and your estate is worth more than $100,000.00, your spouse gets $100,000.00, and the remainder is split between your spouse and your child.
4. If you have a spouse and more than one child* and your estate is worth more than $100,00.00, your spouse gets $100,000.00, and the remaining amount of your estate is split 2/3rds to your children and 1/3 to your spouse.
Wow! This result is absolutely not ideal. First, this has the effect of reducing your surviving spouse’s wealth in favour of your surviving children. Second, this gives your surviving children access to their share of your estate at the age of eighteen. Absolutely none of my client’s in the last decade have gifted a share of an estate to their children at eighteen years of age – it is now very common to see 25+, and for good reason.
We can keep going down the line with more and more distant relatives, but the picture is clear – if you don’t have a Will, you cannot control who deals with your Estate and who benefits from it.
For parents, having a Will becomes even more important because you will want to provide for guardians of your minor children. If you die without a Will, your surviving relatives will be left applying to the Court for legal guardianship of your children. This can create undesirable results (i.e. a relative applies who you would not want to have guardianship of your children) or may create conflict within your surviving family.
The bottom line is this: having your lawyer draft your Will (and other estate planning documents) is easy (takes about 2 hours of your time), fast and cheap. You would be doing a great disservice to your family by neglecting to have a current Will.
Locus Law would be happy to speak with you about how best to plan your estate.
*Where the child of an intestate person died leaving a child or children, and those children are alive at the time the intestate person dies, then they shall stand in place of the deceased child for the purposes of splitting the estate.
DISCLAIMER: This blog post is for information purposes only, and should not be considered legal advice. You should always consult with your own lawyer before making any legal decisions.
