What I Wish I’d Known Before I Was Dead: The Importance of Having a Will

If you live in Alberta and you don’t have a will, congratulations! You’re safely in the majority. A January 2018 report by the Angus Reid Institute shows 55% of Albertans have not made a will. Whether Albertans believe they’re too young to worry about a will, that they don’t have any assets worth the trouble, or that getting a will is too expensive, most of us have not formally written down what should happen when we die. 

This is unfortunate, because having a will can prevent significant problems. In this blog post, we will discuss three issues having a will addresses: the disposition of property, the care of minor children, and the administration of estates.

1. What happens to my property without a will?

A will allows you to decide what happens to your personal possessions and other property. You can make sure important valuables in your estate, like a favourite painting or jewellery, go to people who appreciate them. Wills also allow you to provide financial security for your children or support a charity that matters to you. 

If you die without a will, you will be considered to have died “intestate.” With no will to direct how to give away your property, the rules set out in the Wills and Succession Act, SA 2010, c W-12.2 for intestacy will apply to your estate.  

Generally, this means your estate will be distributed between your spouse and children, although if you have been married multiple times, the distribution will be more complicated. If you have neither a spouse nor children, your parents or siblings will get your estate. If you do not have parents or children, your estate may go to a distant relative you have never heard of, and could theoretically go to the government if no relatives can be found. Specific rules for different circumstances can be found in the legislation.

Without control of where your property goes, you could wind up benefitting people you never intended to leave anything, while neglecting those who matter most to you. If you have a loved one who depended on you financially, they may be forced to go to court in order to receive the support they need, or may not get anything at all. 

2. What about my minor children? What happens to them?

In a will, you can choose who will be the guardian of your minor children subject to the potential guardian’s consent, per s 22 of the Family Law Act, SA 2003, c F-4.5. If your children do not have another guardian already, and you die without a will, someone will have to apply to the Court to be granted guardianship of your children. 

The person who applies may not be someone you would choose. Even if you would approve of the person trying to become a guardian of your children, applications for guardianship of minor children are time-consuming and expensive.

3. Who is in charge of taking care of my estate?

A will is useless without someone to carry out your directions, which is why wills name a personal representative, or as they were formerly known, an executor. A personal representative is in charge of administering your estate. This includes using your property to pay your debts, arranging for the funeral, paying your taxes, and distributing your estate.

Personal representatives control almost everything that happens after you die, and without a will, you won’t be able to decide who gets that control. Further, someone will have to apply to the court to be appointed personal representative, which can be costly.

Summary

Dying without a will means dying without being able to choose what happens after you’re gone. Your property will be distributed in a specific order laid out by the government, your children could wind up with a guardian you would not have chosen, and your estate can be managed by someone you don’t trust.

Having a will creates peace of mind for you and for the loved ones you leave behind. You will be able to make the best decisions for your property and your children. If you want to solve some of the problems that come up after death, a will is one of your best tools to do so.