Why you need a will

Why You Need a Will

STEVE NYVIK, SENIOR PORTFOLIO MANAGER AT LYCOS ASSET MANAGEMENT

A Will is a legal declaration of your wishes concerning the distribution of your belongings on your death.

If you die without a Will in place:

Your wishes regarding your children

Your wishes as to the guardianship of your children (under age of 19) may not be taken into consideration by the Court. Or worse, the Director of Child, Family and Community Services becomes the guardian of your children.

Who gets what?

You can’t specify who will get what assets or how much they should get. Instead, your assets will be distributed as determined under the Wills, Estates and Succession Administration Act of British Columbia. This may produce beneficiaries whom you did not intend to benefit and/or amounts of gifts to those you would not otherwise desire.

More taxes?

It will likely cost you more in income taxes which could otherwise have been reduced or avoided. Your estate may lose out on tax deferred rollovers for appreciated assets and assets in registered plans (without designated beneficiaries). You may also miss opportunities by your Executor to make elections and RRSP contributions. Where your estate is more than $1.2 million USD in assets, your estate might also subject to unnecessary U.S. Estate Tax.

More expenses?

It will almost always be more expensive to administer your estate. Your estate will have to pay for lawyers and other professionals for its administration.

Court appointed representative or your choice of executor?

Without a will, the Court will appoint an Administrator of your Estate who may not be the person you would have otherwise selected. Note that the authority of your Executor appointed in your Will is effective from the moment of your death. However, a Court appointed representative has no authority until appointed. That means, from death till the date of appointment, no one has legal authority to deal with your estate.

Estate accessibility

Your estate may not be accessible by loved ones due to the one year prohibition on transfer[1]and it may be subject to a lengthy court procedure. Moreover, it can take a lot of time confirming who will act as administrator, obtaining consents or renunciations from individuals who have priority in acting, and obtaining a surety bond if needed.

Minor children and trusts

There are special considerations for minor children and estates. Namely, any interest a minor child (under age 19) may have in your estate must be paid into Court to be held until that child reaches the age of majority. At that time, the child is given the full share – there is no flexibility for setting up Trusts or addressing special needs.

Asset liquidation?

Your estate may be forced to liquidate assets at times and at prices that are not in the best interest of the beneficiaries.

Disability benefits?

You might disqualify a disabled child from receiving government disability benefits if the child receives an inheritance[2].

The Next Step

You now know what can happen if you die without a will. So, it’s time to get a properly structured will.  Work with your lawyer or give us a call, we’ll work with you[3] to identify your financial needs and refer you to appropriate professionals.

Footnotes

[1]   One-Year Prohibition on Transfer

On an intestacy, the estate cannot be distributed for one year after the death of the intestate except for:

• payment to a dependent pursuant to a court order; or
• at the discretion of the Public Guardian and Trustee, where the Public Guardian and Trustee is acting as administrator.

[2] One often overlooked consequence of dying without a Will is the effect of distribution of the estate on beneficiaries who are receiving assistance under the Employment and Assistance for Persons with Disabilities Act and Regulation – disability assistance or supplement. Specifically, under the Employment and Assistance for Persons with Disabilities Regulation, if single persons have assets of more than $3,000 ($5,000 for a person with one or more dependents), they become ineligible for disability assistance.  Therefore, a person who is dependent on this financial assistance for survival even a distribution from a small estate can experience catastrophic consequences.

[3] Subject to minimum account size.