I am sure you have often heard “you should make a will”. Let’s talk about why and how.
A will is a statement and direction about what you want to happen to your property after your death. It has no effect during your lifetime. It only takes effect after your passing. People often think that they need a detailed list of their assets in order to make a will, but that is not true. Since the will only speak after death and what property you have constantly changes, this list of assets is a “moving target”. It is, however, important to discuss with your lawyer the kind of property you have and are likely to have at death (such as real estate, investment portfolio, vehicles, business assets, etc.) so that your lawyer can ensure that appropriate powers are given to your Personal Representative (often called Executor) to deal with those assets.
First, let’s dispel a few common misunderstandings:
If you do not have a will the government does not get your property. It will go to your family members but the process to deal with an estate where there is no will is more difficult and costly.
Property held “jointly” or as “joint tenants” is not part of your estate and is not transferred through your will. This is very useful as between husband and wife and can reduce or even eliminate probate costs, but If you have placed another name on your bank or another account so that someone can pay bills and help you with finances, you need to specifically make that clear in your will. The law on this should be discussed with your lawyer.
Life insurance is not part of your estate unless you have named your estate as the beneficiary of the policy. Life insurance is a contract between you and the life insurance company that obligates the life insurance company to pay a specific sum to the beneficiaries you have named in the policy. In general, it is not an asset that is included in your estate.
You will need to name a Personal Representative (Executor). You can appoint more than one Personal Representative to act together and you can name an alternate if the first-named can not act. A Personal Representative is not required to accept that role, so it is advisable to speak to the person you have in mind. You don’t need to give them full details of your assets, but it is comforting to know that they will agree to act.
If you have underage children or adult disabled children, you will need to consider creating a “trust” in your will to provide for them. You should discuss the terms of this trust with your lawyer as there are various options depending on the circumstances. You can also name a “Guardian” until they reach adulthood (19 in Nova Scotia) for your children in your will. This is the person who will have the day to day care of the children. It does not have to be the same person as the Executor or Trustee that you entrust to manage money in trust for your children.
Certain kinds of assets can have significant income tax consequences, particularly related to capital gains tax. There is an exemption for any transfer between spouses, so this is only a concern when assets are being given to a person who is not your spouse. In this case, “spouse” means someone you are legally married to. Common law relationships do not count.
Your personal residence is exempt from the capital gains tax unless part of it is used for business or a rental unit. Other land will be generally subject to capital gains tax. If you have shares of a company, either privately held or in an investment portfolio there can be significant capital gains tax. Essentially the capital gain is the difference between what you paid for something and what it is worth when you dispose of it. The Income Tax Act says that you are “deemed” to have disposed of all of your assets immediately before death and your estate has to pay taxes on the gain from that “disposition”. If you are a resident Canadian taxpayer then one half of the capital gain is added to your income in the year of disposition. There are special rules for non-residents that I will not discuss here.
Wills can, and often do provide for the situation where you name who assets are to go to, but at the time of your death, that person is also deceased. You can name an alternate beneficiary in the case where that person has predeceased you. It is very common to leave everything to your spouse and provide that if your spouse predeceased that your property goes to your children or someone else.
If you have a spouse or child that you do not wish to benefit in your will, you should discuss this with your lawyer. Generally, you are free to dispose of your property as you wish but a spouse or child can be determined by the court to be a “dependent”. In Nova Scotia the Testators’ Family Maintenance Act allows a court to set aside a portion of your estate for that “dependent”. In some cases, this can also include adult children. If you are in this situation you will need to discuss this with your lawyer. The interpretation of the Testators’ Family Maintenance Act by the courts can be quite complex, and court interpretations can change over time. There have been some recent decisions in Nova Scotia that can affect this, so you will need to provide your lawyer with an explanation as to why you do not wish to benefit a dependent in order for sound advice to be given.
There are specific rules in the Wills Act regarding how the will has to be signed and witnessed. While will kits may be suitable in very straightforward situations, you can still run the risk that the document is not signed correctly. It is not particularly expensive to have your lawyer ensure proper, signing especially compared to the cost of a lawsuit disputing the will.
None of us like to consider our own death but making a will will not make it happen any sooner. You are simply making sure your wishes will be carried out and making things much easier and less expensive for those loved ones you leave.