Unfortunately, many Albertans don’t have wills. There’s a common view that a will is something you can do when you’re a senior citizen approaching death, but that you don’t have to do that sort of planning prior to turning 70. This misconception leads to countless problems for many families.
A lot of my clients actually come to see me because they had to deal with a relative -- a parent or spouse or adult child -- who died without a will. Believe me, that’s not a pleasant thing to go through.
I’m sure this list isn’t complete, but here are 5 reasons you need a will. (As a special bonus, at the end I give an example of something that people think is a reason to do a will, but is essentially an urban myth.)
Reason #1: Your kids deserve better than the foster care system.
I don’t mean to trash the foster care system. I’m certain that many or even most foster parents are incredible people who do everything possible to provide good homes for the kids in their care. That being said, most people will acknowledge that foster care should be a last resort.
If you and your spouse both die without wills and you have minor children, it’s entirely up in the air where your kids will go. Hopefully some family member will step forward to look after your kids, but maybe that person who steps forward isn’t the one you would have wanted to take on the role.
Reason #2: Your family will go through a huge legal ordeal to distribute your property if you don’t have a will.
If a person dies without a will, that is known as intestacy. In Alberta, the Wills and Succession Act has provisions that deal with intestacy. Your family will likely still get your property, but they’ll have to jump through a lot of hoops and spend a lot of money.
One big advantage of having a will is that things will be relatively quick and efficient for your family when they are administering your estate.
Reason #3: You leave a lot of unanswered questions when you don’t have a will.
Who will look after your property if you die without a will? Who knows?
To whom will your property go if you die without a will? Who knows?
The Wills and Succession Act actually provides some answers to these questions, but what happens to your property if you die without a will may not be what you would have wanted. When you do a will, you’re providing the answers. You’re in the driver’s seat.
Reason #4: Your family has less to fight about after you’ve gone if you’ve done a will.
When certain questions remain unanswered, such as who should administer the estate, those unanswered questions can lead to family conflict. While not everyone will necessarily be pleased with the choices you make in your will, at least your family then knows your wishes.
Furthermore, a will is legally enforceable. While some families will always find opportunities to fight, if you have a will that is clear and comprehensive, there is less to argue about.
Reason #5: When you do a will, you can also take care of other estate planning concerns.
When you’re doing a will, that’s the perfect time to talk with your lawyer about other estate planning issues. You can talk about the type of property you currently own and whether any changes should be made to things such as beneficiary designations on insurance policies and other investments, and whether a spouse or common-law partners should be added to the title for your home.
When a person does a will, that is also the perfect opportunity to do an enduring power of attorney and a personal directive. Those documents allow you to pick representatives to make decisions for you in case you become mentally incompetent.
Special Bonus: If you don’t have a will, does the government take everything?
It’s commonly believed that, if you don’t have a will, then the government will get all your property as soon as you die. That’s simply not true, at least in most cases.
Maybe I shouldn’t be telling you this because people often come to me to do a will precisely because they believe the myth about the government taking all your stuff. That being said, I prefer having clients who aren't burdened by misinformation.
The government doesn’t get all your stuff. It’s an urban myth kind of like the story about the alien autopsy at Area 51: probably everyone has heard the myth, a lot of people believe it, but it isn’t true.
As mentioned above, the Wills and Succession Act determines where your property will go if you don’t have a will. While the consequences of the provisions in the WSA may not necessarily be to your liking, or to your family’s liking, it’s nowhere near as bad as the government getting everything you own. So for you procrastinators out there, at least there’s that.