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Do you Need a Will?
If you have assets:
The short answer is yes. You need a Will. A person who dies without a valid Will dies intestate. In Manitoba, when this occurs, the Intestate Successions Act determines how the deceased person’s assets will be distributed. If the Will is not created under Manitoba Guidelines; it will not matter what the family or the deceased may have wanted.
If you do not have assets:
Again, the short answer is yes. You need a Will. Even when you do not have assets (or very little), several administrative issues become very complicated after you die, including:
- Who will complete your final tax return?.
- As, your car and your bank accounts will be in your name, who will manage those?
- Who will close your accounts and sell your assets?
Normally, the executor of your estate handles these tasks. A person who dies intestate has no executor. Someone must apply to court to be appointed administrator. Usually, a family member will volunteer.
However, lawyers will charge for this service and it takes time. A grieving family (or friends) should not be left expending their own money on administering your estate.
Making a Valid Will
In the Province of Manitoba, you have the option of creating your Will yourself or creating it with the assistance of a lawyer. Holographic or handwritten Wills are acceptable in Manitoba. However, these should only be done when time is short. If this is the option you choose, the entire Will must be wholly written in the handwriting of the testator and signed at the bottom. A typed or printed document with only the testator’s signature is not accepted as a legal holographic Will.
Be very careful, as holographic wills can easily lead to litigation if heirs do not get along.
Lawyer Prepared Will
Unless time is an issue, you should consult a lawyer. The Wills Act outlines the requirements of a valid Will. Your lawyer will be familiar with those requirements.
Additionally, life insurance policies, home and cottage ownership, Registered Retirement Savings Plans (RRSPs), Registered Retirement Income Funds (RRIFs), Registered Education Savings Plans (RESPs), and Tax-Free Savings Accounts (TFSAs) can have serious consequences on the final determination of your estate. These are all issues you should discuss in detail with your lawyer.
Will kits may not create valid wills in Manitoba. As discussed above, a holograph will must be entirely in the testator’s own handwriting. A Will Kit will has entire sections prepared in typeface with underlined blanks to enter your specific information. These do not meet the requirements of a valid will under the Wills Act unless they meet the witness requirements under the act.
What information must I take to the lawyer to prepare a Will?
Prior to your first meeting with us, take an inventory of all of your assets including:
- Life insurance policies and designated beneficiaries
- RRSPRRIF information and designated beneficiaries
- Real estate
- Primary residence – ownership (joint tenant, tenant-in-common)
- Cottages – ownership
- Land – ownership
- TFSA information and designated beneficiaries
- Bank/credit union/trust company accounts
- Investments – shares/stocks in companies
Prior to our meeting, you should think about how you want your assets distributed. Usually, clients want to distribute assets to spouses or close family members. You should also consider “catastrophic” situations. How should your assets be distributed if your immediate family does not survive you? Extended family or charitable organizations often make suitable alternate beneficiaries.
You must consider naming an executor/executrix. This person administers your estate, pays debts, and distributes assets according to your wishes. Again, you should consider alternates in the event the named executor is unable or unwilling to act when the time comes.
Children under 18
Finally, if you have children under the age of majority (18), you should appoint a guardian(s). The guardian will care for the children while they are minors. Normally the guardian will be different from the executor. This creates a check and balance where the guardian cares for the children while the executor controls the money.
The executor will be responsible to manage the assets (including money) gifted to the children until they reach the age of majority or any other age specified in the will (you can specify the age when the children will receive part or all of their inheritence – for example: 1/2 at 18 years, 1/2 at 23 years). The Will usually gives the executor enough discretion to distribute part or all of the inheritance for educational, medical or other special purposes if the need arises before they are entitled to receive their share of the estate.
Power of Attorney
While a Will ensures your wishes are followed after you are deceased, a Power of Attorney ensures that your affairs are taken care of in the event you become ill or otherwise incapacitated. For all intents and purposes, this document is as important as a Will. A Power of Attorney must be executed while you are of sound mind. Should you become legally incompetent without a Power of Attorney, the court must appoint a committee. They are complex, time consuming, and very expensive.
You need to give careful consideration to who will act for you. It is important to choose someone who lives near you as he or she will have the heavy responsibility of managing your day to day affairs. You should also consider alternate persons as the situation may change over the years.
Health Care Directive
The Health Care Directive is the final document you should consider when preparing your Will and Power of Attorney. This document will assist health care providers if you are no longer able to speak for yourself. In the document, you will appoint one or two proxies who will make health care decsions on your behalf. You may give them unrestricted powers to make decisions or you may impose certain limitations. The government of Manitoba provides a blank form you can fill out with the assistance of your family and doctor. The form may be found here.