Why
do I need a Will?
Creating a Will allows you, not the Courts or the government, to decide how
the assets you spent your life accumulating will be divided after you're
gone. While these decisions are difficult, they are important and can have
a serious impact on your family. Having a Will lets you decide who will be
your executor and how your dependents will be cared for so that if you something
does happen to you, you will at least have the peace of mind knowing that
your affairs will be taken care of.
Many
people put off creating their Wills for a number of reasons. One of the biggest
of those reasons is that they don't like to think about their own death or
they superstitiously believe that creating this important document will somehow
expedite their demise. Of course, no one wants to dwell on their own death,
but sometimes individuals have to put the needs of their loved ones over
their own. In addition, once a Will is in place, it alleviates much of the
stress and worry individuals have about dying because they know the people
they love will be taken care of. Also, there is no reason to believe that
writing a Will shortens your life.
Other
people don't create Wills because they don't feel they have anything valuable
enough to leave to their loved ones. Rarely is that the case. Your assets
do not just include major property, such as cars or homes. They also include
your furniture, your personal belongings, your keepsakes, your family heirlooms,
your clothes, your checking account, etc. If you took a few minutes to look
around, you'd probably be surprised by how much you do have to leave. Anyway,
the idea of a Will is not to grant huge gifts to loved ones but to provide
them with guidelines on how to deal with what you have left behind.
Another
popular excuse is that Wills are too complicated and expensive to create.
Again, this is not the case. You no longer need a lawyer to help you put
your final wishes down on paper. You can easily do it yourself for as little
as $37.
Finally,
some people claim they already have a Will, but it's several years old. Very
few people can have only one version of their Wills to last them their entire
lifetime. Circumstances and relationships change over time; the Will must
change as well or it becomes a useless document that will cause more problems
than it solves in the long run.
What Do I Need to Know Before I Write My Will?
The first thing you should become familiar with are a few key terms that
you need to understand as you create your will. These terms and their definitions
are below:
-
Will: A legal document which specifies how a person's assets are to
be distributed after his or her death. - Testament: Also known as
a Will
- Testator: The person who has made the Will.
- Beneficiar:y One of the individuals named in the Will who will receive
a part of the Testator's estate.
- Legacy: A piece of property left to a beneficiary
- Executor: A person named in the Will by the testator who is responsible
for carrying out the deceased's wishes
Now
that you understand these terms, the next step you need to take is to determine
the approximate value of your assets. Remember that your assets include property,
vehicles, furniture, cash, investments, personal belongings, etc. You'll
want to be as comprehensive as possible. Once you have the amount of your
assets, you'll need to deduct your debts. The remaining number tells you
the value of your estate.
Now
you will need to decide who you wish to receive which assets. Keep in mind
your current relationships as you make these decisions. You may want to make
a list of everyone to whom you want to make a gift, then decide what each
will receive. This is also the time to note any charitable donations you
want to have made in your Will.
After
you've completed these steps, you are ready to begin writing your Will.
What are the basic components of a Will?
There are three main parts of a will. These parts are as follows:
-
Identifying the Testator
- Appointing the Executor and an alternative choice who will take on the
responsibility if the first declines
- Naming the beneficiaries and their legacies
You
may also want to include predeceasing clauses which specify what will happen
to a beneficiary's legacy in the event that he or she dies before the Testator.
Another possible addition would be a Residual Clause which explains how to
deal with any assets not included in the will.
Can I write my own Will?
Yes, you can. While individuals with large estates may need the assistance
of an attorney, the average person can create their own will relatively easily.
We can help you write your own Will. For the form, click here.
Who should I select to be my executor?
An executor is, of course, the person(s) responsible
for making sure your last wishes are carried out. In some cases, this might
be your attorney. However, you do not need a legal professional. You could
choose your spouse, your children, a close friend, etc. The most important
thing is that you select someone who you trust and who will be in your life
for the long-term. Also, you should take into the account the individual's
health and age. Parents and grandparents, for example, would make unwise
choices since they are more likely to die before you.
Before
you complete the Will form, you may want to discuss the responsibility with
the person whom you have chosen as executor. He or she has the right to decline
the task. If you've already prepared the Will, and your executor declines,
you will need to rewrite and choose someone else for the job. After you die,
the executor can still choose to decline the responsibility if he or she
has not yet undertaken the required duties. For that reason, it is often
advisable to select more than one executor. Then, if the first declines,
the second executor can take over.
No
matter whom you select, the executor is entitled to reimbursed for the expenses
he or she incurs while completing the task. In addition, you may also wish
to add some type of renumeration in your Will for the executor to thank them
for handling the matter on your behalf.
Just
as with your beneficiaries, be sure to clearly identify your executor(s)
in your Will. You should include their full name, occupation, and full address
so they are easier to locate when the time comes.
Who should I choose to witness the Will?
Your witness can be any adult who is not included in your Will as a beneficiary
or as an executor. The reason for this is that, in the event of a dispute,
the courts may find that the witness was able to influence your final wishes.
Before
an individual agrees to witness your Will, he or she needs to be aware that
they may be called upon to appear in Court if there is a question about the
validity of the Will. For this reason, you should select potential witnesses
who are likely to remain in your life for the long-term and who would be
fairly easy to track down if it became necessary.
Can I include health care decisions in my Will?
Absolutely. As long as you are physically and mentally able to make decisions
about your medical treatment, care facility admission, and personal assistant
services you can include them in your Will.
When
you are making these decisions, you need to consider realistically what types
of long-term treatments you would consent to. For example, if you were unable
to breathe on your own, would you want to use a ventilator? Obviously, you
won't be able to predict the future, and you won't know what circumstances
you may one day find yourself in, so you will also need to appoint someone
you trust, other than your family physician, to make sure your wishes are
carried out and to make decisions for you which may not be covered in your
Will. If you want, you can even appoint more than one person to handle this
responsibility. In this case, you will also need to specify whether the individuals
you appoint must act jointly or if they can make personal care and medical
decisions for you independently of one another.
What happens to assets that I don't include specifically in my Will?
There are two possibilities. Any assets that you do not give away or distribute
through your will may be divided up according to the laws of intestacy. These
laws vary depending on where you live, but they clearly specify who will
inherit your remaining assets.
If
you don't want that to happen, then you need to include a Residual Clause
in your will. This clause basically specifies who will receive any of the
remaining assets or any assets you were to give away to a beneficiary who
died before you. Additionally, any assets that you purchased after the Will
was written, will be distributed according to the Residual Clause.
What happens if I get married, divorced, etc.?
Any changes in the relationships you have with your beneficiaries need to
be reflected in your Will and, in some cases, may even automatically cancel
your current Will. For example, marriage causes a Will to be revoked unless
the Will was written in contemplation of marriage. On the other hand, divorce
does not cancel a Will; it only nullifies those sections pertaining to the
former spouse. If you and your spouse are separated, however, you will need
to make the necessary updates to your Will.
If you are not married but are in a long-term committed relationship, then
you need to clearly specify in your Will which assets that individual will
receive as well as how he or she should be supported after your death. This
is especially important because unmarried partners are not necessarily entitled
to the same rights as a legal spouse.
Changes
in relationship may also affect your executor choice as well. For instance,
if your spouse was to be your executor, and you divorce, then you would obviously
need to select a new executor and write a new Will.
The
bottom line is that any time there is a change of relationship, you should
really create a new Will so there are no complications or disputes when you
are no longer around to explain your wishes.
How should I deal with the beneficiaries in my Will?
Beneficiaries are the individuals you have named who will be receiving parts
of your assets. You need to be clear about who is to receive what in your
Will, so each beneficiary should have their full name, occupations, and full
address included along with the specific item(s) that are to get from your
estate. By including this information, you are also making it easy for these
individuals to be located in the event of your death.
There
are a few things to keep in mind when making gifts to beneficiaries. For
one, you need to be practical. If your son lives in a no-pets allowed apartment,
for example, don't give him the family dog. Likewise, if your niece has a
studio apartment, don't make her the beneficiary of your king size water
bed. Also, unless you have a Residual Clause in your will, you will need
to update it if one of your beneficiaries dies before you. Otherwise, their
share of the estate will be distributed by the laws of intestacy and not
by your wishes.
Finally,
many people wonder whether or not they should inform their beneficiaries
that they have been included in their Will. It is probably a good idea to
at least let them know that they are included. However, there is not necessarily
any reason to tell them specifically what they will be receiving, especially
since you may make changes in later versions.
Where should I store my Will?
Just as with any important legal document, you need to store your Will in
a safe and secure location. Additionally, the spot you choose needs to prevent
the document from being damaged by water, fire, etc. However, the location
you choose should also be one that is easy to find in the event of your death.
A safety deposit box at your bank or a safe in your home would be two ideal
locations. In either case, you need to provide the executor with the specific
location of the Will as well as the key or combination.
Because
it is important that your executor be able to locate your Will quickly, you
may want to make copies. One of these copies should be stored with your personal
papers while the other should be given to your executor. Both copies should
be clearly labeled "Copy;" the original does not need to be marked.
What happens if I don't make a Will?
When a person dies without a Will, he or she is said to have died intestate
and their assets are then distributed based on the laws of intestacy for
their region. Because these laws are based strictly on legal relationships,
they do not consider how much certain relatives may have meant to the person
or what emotional attachment loved ones had to specific personal belongings
of the deceased. These laws also do not take into account relationships that
are not recognized by law. For example, if a couple lives together but is
not married, the survivor member may not receive any part of the estate.
Additionally,
if you do not have a Will, any disputes concerning your asset's distribution
will have to be resolved in the courts and the costs will be paid by your
estate.
How often should I update my Will?
Your Will needs to be updated in any of the following circumstances:
-
A change in relationships occur (i. e. divorce, marriage, separation)
- A beneficiary dies before you (unless you want those assets to be distributed
according to your Will's Residual Clause)
- Any major assets, such as a car or property, are purchased or sold
- You or anyone else mentioned in the Will has a name change.
- You have children or your children reach the age of majority
- You move to a different province, state, or country
- Your relationship with anyone mentioned in the Will changes
Even
if you do not need to update your Will, you should still review it regularly
(at least once per year) to be sure that no changes are necessary.
How can I cancel my Will?
Many people are not clear about how to cancel their Will. For example, some
believe that a divorce cancels the entire Will. However, a divorce only cancels
the sections of the Will that pertain to the former spouse, not the entire
Will. Even though divorce is not one of them, there are a number of ways
for you to cancel your Will, including:
-
Writing a new Will
- Getting married (unless your Will was written in contemplation of marriage)
- Destroying your Will.
If
you do cancel your Will, you should write a new one immediately. Otherwise,
you run the risk dying without one. In that case, the laws of intestacy will
decide the division of your assets.
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