COLUMN: Final act
The need for a will should not be overlooked, even in so-called “simple” cases where a testator has very little to deal with upon their death. For example: no property or vehicles, little savings and no investments.
This person might view the idea of making a will as an unnecessary bother or pointless because that person has “nothing” anyway. For even those of us who have no interest in making a will, here is an excellent reason to make one.
Since everyone—no matter how much or little they have—must file a tax return annually, but cannot do it if they are not alive, someone has to do this final tax return for them.
If for this basic purpose alone, a will ensures that the person—called the “executrix” or “executor” in the will—who we would wish to handle our affairs has the ability to carry out this task. In addition to “winding up” a person’s finances, the executor usually handles other duties which may include the following:
• make funeral arrangements
• locate and secure estate assets, for example maintain car insurance or mortgage payments
• advertise in a local newspaper for creditors
• sell assets that need to be sold or transfer items to an heir
• locate family members who may be entitled to share in the estate
• file all necessary income tax returns and obtain an Income Tax Clearance from the federal tax department, confirming that all income tax has been paid
• pay the estate’s debts, income taxes, legal and accounting expenses
• pay beneficiaries and report to relatives the estate distribution
Considering the above list, we realize that even the “small” estate needs attention and a will provides much needed instructions to carry out those tasks. Given that estates range in complexity and value, a will helps to secure what happens with wealth accumulated during a person’s life.
After consulting with a lawyer, and perhaps with an accountant, to prepare a will after determining an estate plan, a will provides assurance to carry out the plan to maximize the value of the estate by reducing taxes and other expenses. A will helps to eliminate uncertainties with estate distribution because a will instructs and permits the executrix or executor to carry out that plan.
The next great reason to write a will arises when we think of those we love. We rarely want to put our minds to what happens when we die, but dying without a will can leave those people in our lives who care about us and who we love with stress and expense added to their grief.
While a will does little to relieve grief, it helps to prevent, or at least reduce, conflict in cases where family members disagree as to who should carry out tasks like those listed above, and the likely more contentious issue of who gets what because the will gives these directions regardless of the extent or complexity of the estate.
Last, and perhaps most important, having a will prevents the need for a court application to seek an appointment of administrator which is far more costly than preparing a will.
By preparing a will, we ensure those significant others in our lives are not left, in addition to their grief, with the burden of spending their own time, effort and money on a court application to administer an estate.
With a will, the executrix/executor can proceed in an atmosphere of reduced conflict and confidence that he or she can move forward with distributing an estate as the person who earned it wanted.
Greta Airhart is a lawyer specializing in family, wills and estate litigation with Severide Law in Ladner.