Do You Need a Will?

A Will is a legally binding document prepared during your lifetime that takes effect upon your death outlining how you wish to have your estate assets and possessions distributed. It is common to prepare a new Will at least every five years, especially as your assets are changing and relationships in your life are developing, ending or transforming.

Why Is a Will Important to Have?

Having a Will is important for a few key reasons, including:
  1. To direct the person who will be handling your estate.
  2. To decide who will receive your assets, including any charities.
  3. Flexibility in carrying out your wishes. You can create trusts (for children and grandchildren for example) to protect assets for them until they reach a certain age. Special needs beneficiaries should also have special protections (e.g., a Henson Trust).
  4. To name a guardian for minors instead of having the court appoint a guardian instead.
  5. To minimize costs, such as reducing or deferring taxes. Effective planning could have substantial results, especially for large estates.
  6. To avoid delays and costs, such as determining who is willing to act as the administrator.
  7. Having a lawyer prepare the Will may be especially important where a separation has occurred and/or second relationships are involved:
  • If you are separated but not divorced, a separated spouse could otherwise inadvertently be left the entire estate and able to act as executor.
  • A prior Will may be revoked in consequence of marriage.
  • You may want to make Family Law Act exclusions for separated beneficiaries.

What If I Don’t Have a Will?

If you do not make a Will, you do not have a say in how your property will be distributed. Several disadvantages exist, including:
Your property will be disposed of according to the Intestate Succession Act of Newfoundland, which may not be in accordance with your wishes.
  1. An administrator will need to come forward and be appointed by the court. This selection could lead to disputes among the heirs.
  2. The administrator appointed may not be optimal for the role, by lacking financial or administration knowledge.
  3. The estate administration will likely be more cumbersome and costly for the administrator.
  4. The administrator will be required to post a financial bond twice the value of the estate as security, which would not be necessary if he or she was named as the executor under a Will.
  5. If you have a common-law or same-sex relationship, your partner has no automatic property rights. However, he or she could seek financial support as a dependent.
  6. If you are married with children, your spouse will not be entitled to the entire estate. After estate expenses have been paid, the remainder must be divided between the spouse and each child, per stirpes, so the spouse receives no less than 1/3 of the remainder.

Choosing Your Estate Plan in Newfoundland

Your Wills & Estates lawyer at Gittens & Associates will ensure that you receive the appropriate advice needed and that your wishes are reflected in the Will. We have an office in St. Johns, Newfoundland and can provide services for just about all your estate and other legal needs.

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