You may have found yourself wondering, “Do I need a Will?” Perhaps shortly after this, you may also reason to yourself, “I don’t own that much…”. Contrary to what many believe, it is not how much you own that determines whether you need a Will or not. Instead, the most relevant consideration is: “What is the difference between having a Will and not having a Will in my particular circumstances?” The answer to this question can determine whether the result of not having a Will accords with your intentions. If it doesn’t, then you need a Will. The following will highlight a few items that can vary greatly depending on whether you have a Will or not.
Who Will Inherit Your Estate
If you die without a Will, the Wills, Estates and Succession Act (WESA) determines who inherits your estate assets and how these are divided. This determination is based on your family circumstances and who survives you. In contrast, with a valid Will and the proper estate planning, you are the one that determines who gets what. The following are some general examples of what happens when a person dies without a Will:
If you die leaving a surviving spouse but no children or grandchildren, all of your estate assets will go to your spouse. Note that WESA defines a “spouse” as two persons who are either married to each other or have lived with each other in a marriage-like relationship for at least two years (for further reading on this topic, please see: Marriage, Cohabitation, Break-Ups and Your Estate).
Spouse and Descendants
If you leave a surviving spouse and children or grandchildren, your spouse receives the household furnishings. How the remaining estate assets are divided depends on whether all of your children and grandchildren are related to both you and your spouse. If all your surviving descendants are related to both you and your spouse, your spouse will receive the first $300,000 of your estate. If your surviving descendants are not all related to both you and your spouse (i.e., as in the case of a blended family), your spouse will receive only the first $150,000. In both cases, after your spouse’s initial portion, the remainder of your estate is divided 50 percent to your spouse and 50 percent to be shared between your descendants. However, note that if the value of your estate assets is less than your spouse’s initial portion, then your descendants will receive nothing.
If you leave surviving children or grandchildren only, then your surviving children will each receive an equal share. This is provided that if any of your children have died before you and leaves any surviving children, that deceased child’s share will be shared equally between all of his or her surviving children.
No Spouse and No Children
If you die leaving no surviving spouse, children, or grandchildren, then all of your estate assets will go to your surviving parent(s), if any. However, if your parents are no longer living, then your estate assets will be divided equally between your surviving siblings, if any. In the event that you do not have any surviving siblings either, the estate assets will go to any surviving grandparents. If you have no surviving grandparents, then their descendants (i.e., your aunts and uncles) will inherit.
Who Will Care For Your Minor Children
In most cases, a child’s legal guardians consist of both parents (biological or adoptive) where the parents are presently married or in a common-law relationship; alternatively, where there is a divorce order, the child’s guardians may continue to be both parents or just one, depending on what the Court has ordered. Step-parents, however, do not automatically have guardianship rights. If all of your children’s legal guardians pass away without an appointed guardian under a Will or otherwise, they will be placed under the care of the government: the Director under the Child, Family and Community Service Act would become their guardian and Public Guardian and Trustee (PGT) would be responsible for their financial and legal rights. In other words, your children would be in some form of foster care until someone applies to the Court to be their guardian. On the other hand, a Will allows you to predetermine who the guardian(s) of your children will be if you pass away while you are the sole remaining guardian.
What Age Will Your Children Receive Their Inheritance
If you do not have a Will and your minor children survive you, their share of the estate assets will be held in trust and administered for their care and maintenance by the PGT, subject to its applicable fees. As soon as each child turns 19, the PGT will return to your child what remains of his or her share. In contrast, a Will allows you to appoint an adult of your choosing for the above role of trustee. You can also determine the age at which you think your children will be responsible enough to receive and control their own inheritance. Will-Makers who prefer to postpone such age may, for example, provide that their children receive their inheritance at 21 or 25, or perhaps half at one and the remainder at the other.
Who Will Administer Your Estate
An executor is the individual appointed under a Will to administer the deceased’s estate. The executor has the responsibility of making funeral arrangements, gathering and preserving the estate assets, paying off the deceased’s debts and liabilities, and ultimately distributing the estate to the beneficiaries. If you pass away without a Will, there is no designated person to fulfill this role. Instead, you would be hoping that someone close to you volunteers for the task. If so, he or she must apply to the Court for the right to administer your estate and serve as the “administrator”. WESA prescribes a priority ranking for those who have the right to apply (i.e., the spouse of the deceased has first priority followed by a child of the deceased, etc.). Some potential problems may be that nobody steps forward for this task, or conversely that there is a dispute among applicants who have equal priority. Only with a Will can you predetermine the person you think is suitable to administer your estate.
What Your Funeral Arrangements Will Be
The Cremation, Interment and Funeral Services Act governs what happens to a deceased person’s remains. It provides a priority ranking for who has the right to control the disposition of the remains, and at the top of this list is the executor under a Will. If you have no Will, then the right first goes to your spouse, followed by your adult children, etc. It also provides that if you have set out your preference under a Will regarding how to deal with your remains, your wishes must be followed by the person with the right to control them (unless illegal or unreasonable). As such, if you have a specific preference for what happens to your remains after you pass away (i.e., cremation versus burial) or who is in charge of your funeral arrangements, then you should set these wishes out under a Will. Otherwise, this may not be what ends up happening. A Will is a powerful document that can make a significant difference in whether your intentions are carried out. While the Will is a very important component of estate planning, estate planning actually encompasses much more. Estate planning considers the “big picture” of your circumstances as a whole, and can involve additional means of arranging your legal and financial matters to ensure your loved ones are cared for in the best way possible. For more information on how we can assist, please contact one of the Trusts and Estate law practice group lawyers.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.