REVIEWING YOUR WILL
A will is not something that needs to be changed every day but it
needs to be reviewed over time and especially if there has been a
change of your life circumstances. Things you need to consider:
Executors:
Is your executor or alternate executor still capable of performing
the function. Elderly people may be unwilling or unable to act or
to continue to act as executor. Unfortunately as we get older our
peers often die off and it makes sense to appoint an executor who
is younger than yourself. If there is a trust for grandchildren,
the executor must perform his or her duties for a number of years.
Under these circumstances it is wise to appoint one or more alternate
executors to perform the job. A corporate trustee might also be considered
as a trust company will always be available to perform the duties.
The executor ought to be in fairly close geographic proximity to
you and the estate property to easily perform his or her duties.
If the executor has become a non resident of Canada they may need
to be replaced because of the potential of the estate being considered
a non resident for taxation purposes. If there are co-executors,
do they still get along?
Changes to property:
If there are a number of specific bequests in your will and you
no longer holder this property you might want to consider changing
your will to delete these items. Although specific bequests usually
lapse due to the property not being held at the time of death, it
may create confusion if you have given an item to one relative prior
to your death and in your will you have noted it goes to somebody
else. If part of your scheme of division is to give a large asset
to one party and the residue of your estate to another, if prior
to your death the specific asset is sold, the person receiving the
residue of the estate will get your entire estate including the value
of the specific asset.
If you have substantially more or less assets than you did when
you made the will you need to consider your scheme of distribution
and how it now works.
You need to consider changes to the way you hold property. If you
now hold your property in joint tenancy with another person, that
property will go to the surviving joint tenant on your death. You
must remember that there needs to be provisions in the other joint
tenant's will for an ultimate beneficiary of the property that meets
your approval.
Changes to beneficiaries.
If a beneficiary has died you must consider how this changes your
will. If a beneficiary has become incompetent a trust should be set
up for the incompetent person. You might want to consider including
beneficiaries such as grandchildren who may not have been in a will
you signed a number of years previously. You may have other legal
obligations such as children or a common law relationship which must
be considered.
Likewise life insurance beneficiaries and RRSP beneficiaries should
be considered. Changes to these beneficiaries obviously changes the
distribution of your assets on your death. Changing RRSP beneficiaries
may also have tax consequences.
Changes to the law
The law is constantly evolving. For example, in the last year or
so there have been changes to the law with regard to the status of
common law spouses and their rights upon death. A common law spouse
can now contest the will under the Wills Variation Act and is entitled
to property in the absence of a will. If you become divorced, divorce
will void some sections of your will and remarriage will void your
will entirely. If you had a will when you were in a common law relationship
and you then got married you need to have a new will or at least
a codicil confirming the provisions of the old will.
There have also been some problems with the use of the words "per
stirpes" in wills. This is a latin word that dealt with distribution
of the proceeds of your estate amongst your issue. Recent case law
decisions have put into question the usage of these words in wills.
Most people only need one or two wills during their entire lifetime.
Natural milestones are the following:
1. Single and you don't want all your property to go to your parents;
2. When you get married;
3. When you have children;(consider guardians)
4. If you get divorced or separated;
5. When you retire;
6. You win the lottery.
So get out your will and read it. If you have concerns, talk to
your lawyer.
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