happy family | Badyal Toor Law

Whether you are in your 30s or your 70s, planning for your estate is a necessity. You need to make sure your estate is looked after, your finances are taken care of, and your health-care directives are carried out. But there is more to writing up a will then just saying which family member gets what.

Here are six things you should keep in mind about planning your estate:

  1. Don’t underestimate the importance of Powers of Attorney

There are two power of attorneys that you should consider appointing when planning your estate — one to look after your finances (an Enduring Power of Attorney), and one to look after your health-care needs (a Personal Directive).

Both the Enduring Power of Attorney and the Personal Directive only “spring into action” if you are incapacitated and unable to make decisions for yourself.

The Enduring Power of Attorney will be able to handle financial decisions on your behalf, such as investments and paying off debts, among other things. The Personal Directive will make decisions on any treatments or surgeries you might need to undertake, as well as other health care concerns.

It is important that you appoint someone who you trust, as these individuals will be responsible for making choices that directly your impact your life. You should discuss your wishes with these appointed individuals to ensure they understand your desires and are able and willing to take on this responsibility.

      2. Your will needs an Executor (Personal Representative)

The executor of your estate (also known as a Personal Representative, or Trustee) carries out the directives in your will, making sure that your estate is distributed according to your wishes. This person, or group of individuals, is also responsible for paying final taxes, debts, and dividing property. An executor should be someone you trust, such as a spouse or family member, and you should discuss your wishes with them prior to appointing them. It is also beneficial to appoint alternate executors in the chance that your first executor is unable to take on that role. If you are unsure about who to appoint as your executor, consider an impartial party such as a professional or corporate trustee.

     3. You can appoint a guardian in your will for any minor children or dependent adults

If you have children under the age of 18, it is imperative that you name a guardian to look after them if something happens. This can be an extremely difficult decision to make. Consider choosing a friend or family member you trust who shares similar values -- and if your kids are old enough, consider consulting them as well. You should also discuss your wishes with the potential guardians to make sure that they are able and willing to take on this responsibility.

     4. Your will needs to be updated regularly

As your family changes, so should your will. Make sure you update, or at least review, your will after any major life event, such as a divorce, birth, death or change to your economic status. A change in your family or financial circumstances doesn’t have to mean that you require a newly drafted will; your lawyer can modify your will to reflect your new changes through codicils (which are amendments to wills).  

     5. Keep the original will in a safe place, and a copy at home

Only an original will -- no photocopies -- can be probated in court. Usually, the will is kept by the client in a safety deposit box, or is held by their lawyer. Make sure that your executor is also notified of where you are keeping your original will to ensure they are able to easily access it. There have been cases where an original will was not presented and the court was unable to verify the photocopy, leaving the deceased’s estate to be distributed according to the legislation and not the deceased’s wishes.

     6. If you die intestate (without a will) the Wills and Successions Act will determine how your property is divided.

If you do not have a will, or your will is not valid, the Wills and Successions Act will determine how your estate is distributed. Someone will need to apply to the court for letters of administration to acquire authorization to distribute your estate.

According to the Wills and Successions Act, if you leave a surviving spouse or adult-interdependent partner and no children, the entirety of your estate will pass to your spouse. If you have children, they may be entitled to receive a portion of your estate depending on your relationship with your spouse. If your children are under the age of majority, their share will be held by the Public Trustee’s office until their 18th birthday, at which time they will receive their full share of the estate. This may cause issues, as most parents intend for their estate to be distributed to their children in percentages as they mature (for example – 25% at age 18, 25% at age 25, and 50% at age 30).

If you pass with no spouse or children, then your estate will be distributed to your parents, and further to your siblings if your parents have pre-deceased you.

If you pass with no spouse or children, then your estate will be distributed to your parents, and further to your siblings if your parents have pre-deceased you.

The above is a very brief and simplified overview of the some of the situations that may arise if you die without a will, and in real life situations it can often get more complicated and costly. Effectively planning for your estate can ultimately be more cost-effective and places less of a burden on your family.

Making a will isn't hard or overly expensive, and it could save you and your family time and money when it comes to administering your estate. But whatever the cost, effective estate planning is always worth it. You do not want your estate's fate to be decided by legislation, and not your wishes.

We would love to assist you in planning your estate. Our lawyers are experienced and can help guide you through the process and answer all of your questions and concerns. Contact us Today.

By: Deep Brar