Good stewards have a plan in place for dealing with their possessions when they die or become incapacitated.
- A will lays out your instructions for the payment of any debt or taxes on your death and the passing of the remainder of your assets to your spouse, family, church, charity. In your will you will name someone you trust to carry out your wishes as the executor and a guardian for any minor children. Dying without a will can cause problems. Your estate will be distributed according to the laws of your province (not all provinces are the same). So some assets may go to those you don’t wish to benefit and distribution will be delayed and the court will be involved. If you have underage children and you die without naming guardians in your will, the court will name a guardian. Therefore, write a will while you have the health and ability to do so.
- A Power of Attorney – A will takes effect when a person dies but a Power of Attorney ceases on death. Sometimes Powers Of Attorney are called “Living Wills”, which add to the confusion. An enduring Power of Attorney can appoint a person you trust to look after your i) assets and ii) make health decisions if you become mentally incapacitated. The person you appoint doesn’t have to be a lawyer but is someone who can write cheques, file tax returns, make investment decisions and medical decisions.
You need to have a lawyer prepare your Power of Attorney while you still have mental capacity. Also have a lawyer prepare your will or update an old one. Don’t try to prepare these legal documents without a lawyer because poorly worded or improperly signed documents may not do what you intend and eventually can cost more then a lawyer’s fee.
Why you need a will?
- You are a steward, don’t leave a mess that ensues when one dies without a will
- Bigger tax bill and more expenses with the government involved
- Lawyer’s fees are a good investment – get an estimate before you hire a lawyer
- You can leave your estate to whoever you want to, subject to you providing for:
- Your spouse (legal or common-law)
- Underage children (legitimate or not)
- Adult children who are prevented from earning a living by a mental or physical handicap
If you leave these out, they can contest the will in court to get a part of all of your estate. You are not required to leave something to adult children or to your grandchildren. The laws vary from province to province so if you leave adult children and grandchildren out you have to make sure your lawyer documents your reasons and your capacity.
What is Undue influence?
Your making of a will must be when you are mentally able to do so and must be voluntary. Your lawyer can document these things and even get a professional opinion on your mental capacity if there is concern. Undue influence is when one is persuaded and manipulated to leave all or part of your estate in your will to someone that you didn’t really want to. For this reason beneficiaries of your will and of your spouse are not allowed to sit as witnesses of your will.
Getting Started with Your Estate Planning:
Before going to your lawyer you can save much of your lawyer’s time by being prepared as follows:
- Make a list of all your assets with as much detail as you can:
Assets may include pensions, RRSP’s, RIFF’s, Life Insurance, Real Estate, Investments, Bank Accounts, Motor Vehicles, Business interests, Coins, Collectables, etc.
- A record of all debts/mortgages those you owe and those owed to you. If a family member owes you make sure to include if the loan is to be repaid, forgiven or to form part of their inheritance upon your death.
- Papers relating to all your assets and debts including your income tax returns, bank accounts, safety deposit boxes. Include where all these papers and such are or put them all together in one file and tell your executor and attorney where they are.
- Personal and family information with names, addresses and contact information
- Determine who you can trust to carry out your wishes and who has the knowledge and experience to be your executor, attorney and guardian of any underage children. You should name an alternate executor, attorney and guardian in case they die ahead of you.
- Prepare instructions for dividing personal possessions:
- Your family: make sure you and your spouse are in agreement. Most spouses leave their estate to each other with a provision that when the last one dies the estate goes to the children and/or grandchildren. If you have underage children you would provide for them through a trust until they become adults or reach an age you select. There is also the question of whether to give God’s assets to ungodly family members. Consider what the Bible teaches about stewardship. You may want to give to those that need rather than equally. You may want to put some controls on those who demonstrated that they are not wise in handling money. Make these decisions a matter of prayer.
- Giving to God’s Work and to Charities: You will want to consider giving a portion of your estate to your church and to those Christian Ministries that have benefited you and your family. Also, there may be some secular community charities that have helped your family that you would like to leave an end of life gift. These gifts often can result in tax savings for your estate.
Are you wondering about a biblical approach to apportioning your estate? Read about it in Stewardship: Does God Care About Who I Leave My Estate To?
This article is intended for information purposes only and should not be considered legal or tax advice. Please seek a professional for legal or tax advice.
For more information on Wills and Estate Planning in Your Province visit:
Manitoba (a legal guide to Farm Estate planning PDF document)