Planning your Will

Why Should You Have a Will? Having a will is very important. With the help of a lawyer, it is also very easy to do. Many people do not have one, or have not updated their will. A lawyer can prepare a will for you at a very reasonable cost. It will also give you peace of mind knowing that this has been taken care of.

What if I don't have a Will?

Some people have the impression that the government will take all or most of your property or it will all go to taxes if you die without a will. That is not correct. However, if you do not have a will, your property may not go to the persons intended. The legislation dealing with this was re-written effective October 1 2019. It is known as The Intestate Succession Act, 2019. The new rules will only apply to someone who dies on or after that date. If a person passed away before this date, the old legislation still applies. Because of that and the various rules in the old and new legislation, it's not possible to set out a simple summary in this article. The old and new legislation leaves property primarily to a surviving spouse and possibly to surviving children, but it's not that simple. For example, in Saskatchewan, someone you consider to be your child through a blended family may not receive anything unless you are the biological parent or have formally adopted the child. Someone unintended may become the guardian of your children or control their assets until they become of legal age. Your property may go only partially to your spouse when you intended him or her to receive it all so they can use it and look after your entire family. A person you did not intend may be in charge of managing and distributing your assets. Income taxes may have been increased, especially in cases of farmers with farm land. A little planning might have also avoided or minimized estate probate expenses. The people you leave behind may go through more stress because you did not take steps to plan your estate. They will often not have access to funds to live on for a while. These are all good reasons why you should spend some time to prepare your will. I can't imagine any reason a person would not want to have a proper will.

Is your Will still in Force?

It is possible that your will is not valid any more because it was deemed to be revoked by marriage or by living together for 2 years in the period of time described below. Saskatchewan law was changed in 2001 but it was changed again on March 16 2020 so that entering into a spousal relationship in that above period of time may have resulted in deeming your prior will revoked ... regardless of whether you became legally married or during that period of time you became deemed spouses because you had been living together for 2 years. As of March 16 2020 the rule is no longer there and your will is no longer revoked if you became spouses on or after March 16 2020 by marriage or living together ... but it may not save wills where the marriage or deeming of being spouses took place in that time span between 2001 - March 15 2020. This may sound good but it depends on your situation. It might mean that your new spouse receives nothing because you were recently married but didn't bother to write a will replacing your old will from before you became spouses. Every person has different circumstances and it is impossible to say if this will be beneficial or not in your situation. Thus, you should address your mind to this, consult your lawyer for advice and get a proper will signed. Don't rely on this as your answer. Use it to alert yourself to this issue and consult a lawyer for proper advice on the law and your situation.

Parts of your will can be revoked if your marriage ends by a final decree of divorce before you die. It may be possible to avoid this result in some cases by providing otherwise in your will. For more detailed information about your own personal circumstances, you should consult a lawyer.

What is involved?

A lawyer can help you prepare your will quickly and at a very reasonable cost. Here are some of the decisions you will need to make:

Naming an Executor or Executrix

You will need to decide who will be in charge of administering your estate when you die. This person is called your executor (male) or executrix (female). The person should be someone you trust. Most spouses name each other as executors. It is also a good idea to name an alternate person in case the first person is unable or unwilling to act as executor. You can name more than one person to act jointly, although if you name too many people, you may make their work unnecessarily complicated. If you do not have a close relative or friend that you want to do this, you can name a trust company or someone else. Keep in mind that a trust company will charge a fee for acting as executor.

Sometimes a person dies without a will. Provincial legislation will determine how their assets are divided. The person appointed by the court in that case is called an administrator instead of an executor. This is also the case if there is a will but it does not name an executor. If the beneficiaries do not consent, the administrator may be required to obtain a bond to ensure that they carry out their duties.

Funeral Costs and Debts

Funeral costs and debts must be paid before anyone is entitled to receive anything as a beneficiary.

Naming Beneficiaries for Insurance and RRSP's

You should consider whether you want to name beneficiaries for any insurance on your life or RRSP's because Saskatchewan law lets you do so. For example, you may have forgotten to update the beneficiary under an insurance policy or investment. It's always best to write directly to the insurer to ensure that this is taken care of but you can also do it through your will.

Guardians for your Infant Children

A will should indicate who will be the guardians for your infant children if neither parent survives. "Infant" means children under 18 in Saskatchewan. The same or a different person may be named to take care of your infant children's property rights. You may also wish to name alternate persons in case the first person cannot perform the function.

Distributing your Property

Most people choose to leave their property to their spouse if they die, and to their children if neither spouse is alive. In fact, generally speaking, spouses have a legal obligation to provide for the other in their estate and parents have a legal obligation to provide for their children while they are minors or dependants. Failure to do so may lead to a legal claim against the estate in certain cases.

A properly drafted will should deal with using the estate assets to care for any children and provide for their education if both spouses have passed on. It should be flexible so that it will be effective at any time in the future, rather than trying to specify dollar amounts. Who can say what your children's needs will be in the future, or what the cost of living will be.

Consider what age you would like your children to receive any property. Some people are of the view that children in their early years are more likely to spend money unwisely. Others will disagree.

Often people think about distributing property evenly between children as they each reach a certain age. However, if done in this way, the first to receive might end up receiving a larger share to the detriment of the others. The other children will have to live off the remaining funds and only receive a percentage of a smaller sum when they reach the designated age. We recommend dividing it only when the youngest reaches a certain age.

A will should also cover the possibility that some or all of the people intended to receive your property are not alive to receive it. Who should it go to in that case? Each person will have a different point of view.

A will may leave specific gifts to certain people, and the balance to others. The remaining property can be divided in equal or unequal shares. A lawyer's job is to draft a will so that it meets your individual wishes.

Businesses, Farm Land, etc.

You must let your lawyer know if you own part of a business, farm land, or other valuable property. The same also applies if you own any property through a corporation or other legal entity instead of in your own name. Your wishes might not be carried out properly and your beneficiaries may be disappointed if your lawyer is not properly advised about this.

Other Instructions

A will may also provide instructions about burial, cremation, etc. Some people prefer to include those or other instructions in their will but you do not need to.