REVIEWING YOUR WILL
A Will is not something that needs to be changed frequently, but it needs to be reviewed regularly over time and especially if there has been a change of your life circumstances. Things you need to consider include the following.
Is your executor or alternate executor still capable of performing the job?
Elderly people may be unwilling or unable to act or to continue to act as executor. Unfortunately, as we get older our peers pass away, so it makes sense to appoint an executor who is younger than you. 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 do the job. A corporate trustee can also be considered; a trust company will always be available to take on the duties.
Does your executor live close by?
The executor ought to be in relatively close geographically to you and the estate property to easily perform his or her duties. If the executor has become a non-resident of Canada, he or she might 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?
Things change. Sometimes changing circumstances in your executors' lives are just as important as those in your own. Stay in the know.
Changes to Property
Do you still hold the property named in your Will?
If there are a number of specific bequests in your Will and you no longer hold the named property, you might want to consider changing your Will to delete these items. Although specific bequests no longer held at the time of death usually lapse at that time, it could create confusion if you have given an item to one relative prior to your death and in your Will you have stated it goes to somebody else. If in your Will you give a large asset to one party and the residue of your estate to another, but then sell that asset prior to your death, the person receiving the residue of the estate will get your entire estate, including the value of that specific asset. The person to have received that asset gets nothing.
Have your assets changes substantially since you made the Will?
If you have substantially more or substantially fewer assets than you did when you made the Will, you need to look at your scheme of distribution and see if it still works as you intended.
Have you changed the way you hold your property since you made the Will?
If you now hold your property in joint tenancy with another person, that property will go to the surviving joint tenant upon your death. You must remember that there needs to be provisions in your joint tenant's Will for a beneficiary of the property that meets your approval.
For example, if you are in second marriage and hold property with your current wife, you might want to ensure the children of your first marriage be named as beneficiaries in her Will. Of course, your current wife has the right to change her Will at any time and could certainly change her Will upon your death.
Changes to Beneficiaries
Have the circumstances of any of your beneficiaries changed?
If a beneficiary has died, you must consider how this changes your Will. If a beneficiary has become mentally incapable, a trust should be set up for the incapable person.
Are there other potential beneficiaries to consider since you made your Will?
You might want to consider including beneficiaries such as grandchildren, who might not have been in a Will you signed a number of years previously. You might have other legal obligations such as children or a common-law relationship that must now be considered.
Have you life insurance or RRSPs?
Technically, life insurance and RRSP beneficiaries fall outside your Will. Don't forget to regularly review those as well. Just remember that changes to these beneficiaries will change the distribution of your assets upon your death. Changing RRSP beneficiaries in particular could also have tax consequences.
Changes to the Law
Do recent changes in the law affect your Will?
The law is constantly evolving. For example, 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” (your descendants by blood). Recent case-law decisions have put into question the usage of these words in Wills.
Life's Milestones that Call for a Will or Review of a Will
Most people only need one or two Wills during their entire lifetime. Natural milestones are the following:
- You are single but you don't want all your property to go to your parents.
- You have gotten married.
- You have children (don't forget to appoint guardians).
- You have gotten divorced or separated.
- You have retired.
- You have won the lottery!
So, if you are at any of the stages listed above and don't have a Will, you need to get going and have one prepared for you. If you have one and the stage you're at has changed, you need to review it. If you need advice, talk to a lawyer.
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