IN-TES-TATE

Apr 29, 2016 | Dian Chaaban


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Noun | a person who has died without having made a will

Adjective | (of a person) not having made a will.

Use it in a sentence: Prince died intestate.

Simply put, this means that your provincial government decides how your assets will be divided - not you.

Many of us were shocked to learn on Tuesday that Prince had died intestate, as confirmed by his court documents filed this by week his sister asking a Minneapolis court to appoint a special administrator to oversee his estate. Sister Prince listed herself and five other siblings or half-siblings as Prince's heirs but gave no value of his assets or debts (the value of his existing music catalog alone has been estimated at over $500 million)…

While it was alarming that someone as wealthy as Prince didn’t have a will, I wasn’t entirely surprised to hear this considering how common it is for people to put off estate planning. According to a study by Lawpro, more than half of Canadians (56%) do not have a will, despite acknowledging how important it is to have one.

Will Planning is a large part of the estate planning advice my team and I provide, so for those 56% of you who may not have your Will in place, here are the major consequences of dying without a Will:

  1. Many people incorrectly assume that if they were to die without a Will their estate would simply pass to their spouse. However, this would only happen for assets that were held jointly with right of survivorship with the spouse (except for in Quebec).
  2. Depending on your province, your spouse will receive a preferential share of your estate, ranging from the first $40,000 to $200,000. The balance of the estate is divided among your spouse and children.
  3. Most provincial intestacy rules do not recognize common-law spouse status, so he or she may be left out of the estate entirely.
  4. Without a will, you are unable to appoint an Executor or Powers of Attorney – these are very privileged roles when it comes to your wishes.
  5. The Public Guardian (the government) will be involved in the selection of guardians for any minor children you may have. This person would be responsible for your children's physical care, health care, education and general well-being until they reach 18 years of age (19 in some provinces). If you don't name a guardian, there may be dispute among family members as to who is best suited to act as guardian, resulting in a need for court or provincial government involvement.
  6. Your burial preferences are unknown.
  7. In the event of a common disaster (where your whole immediate family passes away), your estate may go to a relative that you may have never spoken to, or don’t even like. Instead, you could include provisions to create a legacy through charitable gifting.
  8. Ultimately, without a will, you are unable to exclude or include beneficiaries (such as your favorite people, organizations, causes and even pets) and valuable artifacts or family heirlooms you intend to pass along.

Despite all of this, many people never get around to making their Will, which can result in costly litigation and additional emotional pain for loved ones—which is unfortunate, because making a Will can be simple and inexpensive.

In Canada, there are three basic types of Wills:

  • Formal Will | This is a typed document signed by you in the presence of at least two witnesses (who cannot be beneficiaries or spouses of beneficiaries). It is wise to have a formal Will prepared by a lawyer. The cost is well worth it when you consider the potential problems you'll avoid if improper wording is used or the document is not properly signed.
  • Notarial Will | Similar to the formal Will, the notarial Will is only used in Quebec. It is prepared by a notary and signed before the notary and generally one witness.
  • Holographic Will | This is a Will prepared entirely in your handwriting and signed by you with no witness necessary. Experts advise against holographic Wills because they are subject to misinterpretation and challenge.
  • Another alternative—also not recommended—is to prepare your Will with one of the many pre-printed forms or computer programs currently available. They are inexpensive, but your savings are small compared to the legal costs your beneficiaries might have to pay to settle your affairs. Additionally, if your Will is not worded properly, some of its provisions may be legally invalid.

Click here for a handy Will Planning Guide to get you started, that said, your Will should be prepared within the context of an overall estate plan to ensure that all elements of your current situation are addressed and that your estate objectives are met. If you would like to gain a better understanding of the issues and opportunities that should be considered when preparing a Will ask me for the full Will & Will Planning Guide.