Updated: Nov 29, 2021
Editor’s Note: This post was originally published on Oct. 6, 2020 and has been expanded to provide additional detail.
Of all the triggers that can lead people to writing their wills — the new year, a new business, a marriage or a divorce, to name a few — one of the biggest is the experience of having a loved one die without a will.
“People go through and deal with an estate where there was no will, and [they say], 'I don't want my kids to have to deal with that,'” says Jeff Kahane, a Wills & Estates lawyer with Kahane Law. “They come in right away to get it done.”
In October 2020, Jeff sat down with BOOM President and CEO Laureen Regan for a Q&A session focusing on commonly asked questions about wills.
Here are some highlights from their discussion:
Why is a will important?
Jeff says a will ensures you can control where your assets will go and that your last wishes will be followed. If you have young children, a will lets you name a guardian who, Jeff says, “follows your belief system in terms of education, religion or community involvement.”
And, he says, a will gives you peace of mind that the money you leave to a charity or, say, to your dog will actually be distributed according to your directions.
“Everyone has a part of their life that’s important to them, so [a will helps in] setting up [personal bequests] and making sure that’s in place,” Jeff says.
Who should have a will?
Between 10% and 15% of Canadians have a will, but Jeff says we should all have one — especially if we have children or grandchildren, or if we live in a blended family. He also points out that anyone running their own business should have a will.
“You want to make sure that a business structure is set up in order for the business to continue for the benefit of your beneficiaries,” he says.
What if I die without a will?
Passing without a will is called an intestacy. The government sets out exactly who gets what and it starts with the closest in line (spouse or partner, kids, parents and siblings, cousins, etc.). Where there is no blood lineage and no one comes forward, the estate would go into a provincial fund, such as the one laid out by the Government of Alberta’s Wills and Succession Act. If a relative comes forward later, they can apply to receive the funds.
What’s included in a will package?
In addition to writing a will, you should also consider creating two additional documents: an Enduring Power of Attorney and a Personal Directive.
Jeff says his firm gives people the choice of which of the three they want to create as part of the will package.
“In terms of cost effectiveness, it’s better to do all three at once in one package,” he says.
What should people consider when creating an Enduring Power of Attorney?
An Enduring Power of Attorney deals with your finances. The Government of Alberta describes it as “an agreement between you and a person you trust that allows them to make financial decisions on your behalf, if you’re no longer capable of making these decisions.”
Jeff explains that this person will manage “financial affairs such as your home, your mortgage, loans, investments — anything dollar-wise.” He recommends you choose someone you trust and like. Depending on the nature of your assets, select someone who is comfortable with and knowledgeable about handling those types of assets.
And, Jeff says, although many people think an Enduring Power of Attorney is important in case they lose their mental capacity due to medical conditions such as Alzheimer's Disease or a stroke, it’s also important for more temporary situations such as an accident.
“We had a client who had his own business and who had an unfortunate accident while travelling,” Jeff says. “While he was in a coma, he couldn’t make financial decisions for himself. He lost his company because no one could write rent cheques, no one could pay employees, no one could deal with contracts with suppliers.
“If he had had an Enduring Power of Attorney [in place, the person named] could have stepped in and said, ‘Ah, I know about this document. I’m going to deal with things and ensure everything continues and is fine, and a few months later when he comes back, he can step back into the process.’”
What is a Personal Directive?
A Personal Directive is a legal document that lets you name someone who would make medical decisions on your behalf in case you aren’t able to make those decisions yourself.
“A personal directive deals with your person, [for example] what medical treatment you get or what medical treatment is withdrawn; where you live — what kind of care facility. It’s going to be dealing with your humanness, like all your bodily interactions with the world,” Jeff says.
Is it possible to draft your own will?
Yes. The most important thing to remember is your signature needs to be on the document. Your will can take any form, from a hand written note to a full legal document.
But many experts recommend working with a lawyer, and Jeff says one key part of his role is to “help people step through the process of ‘what if, what if, what if’ — because you don’t know what the future holds. So it’s really trying to anticipate as much as we can.”
What are your tips for preparing before I visit a lawyer to draw up my will?
Jeff explains that, when you book an appointment with firms like Kahane Law, they will send a package in advance of your meeting, whether online or in person.
“It has all the information they have to start thinking about, and helps guide people,” he says. Read through all of the information and documents sent for your review before arriving at your appointment.
How often should you review and update your will?
It depends on your personal situation. An important component of any will is naming the person — called an executor or a personal representative — who will carry it out.
You might want to change your executor if that person is no longer able to carry out an executor’s duties, or if your own children become old enough to take on the executor role. It’s also a good idea to update your will if your asset base changes, such as your business becoming very successful. Major life changes such as getting married or getting divorced are also times when you should review and update your will.
Where should you keep your will?
Jeff says the most important consideration is that your executor knows where you keep your will and any additional documents such as an Enduring Power of Attorney and your Personal Directive.
If you keep documents in a fire safe, make sure your executor knows how to open it. If you keep the documents in a safety deposit box, Jeff recommends you confirm with your bank the person or people who have the authority to access that box. Or, he says, you can even place your will in a Ziplock bag, tucked into the bottom of your freezer — just as long as your executor knows that’s where it is.
Take some time to ensure your documents are in order and up-to-date for your own peace of mind — and for the peace of mind of your loved ones.
To watch the full interview, click here.