Too Young To Think About Making A Will? Maybe Not.
Note: This post was originally published on LinkedIn under Elaine Blade’s profile in Oct 2019.
I’m often asked by friends and colleagues, “when should I prepare my first Will?” While there is no one size fits all answer, there are a number of factors and considerations that can help point to the right time for you to get started.
Age requirements in Canada
A Will is a formal legal document that sets out how you want your assets disposed of at your death. Given the importance of the document, you won’t be surprised to learn that minimum age requirements apply.
In all provinces except British Columbia, and Newfoundland and Labrador, the person making the Will, called a testator, has the legal capacity to make a valid Will if they have attained the age of majority under provincial law. In B.C., the age for making a Will is 16, even though the age of majority is 19. In Newfoundland and Labrador, the age for making a Will is 17, even though the age of majority is 19. (There are also minimum age requirements for preparing Powers of Attorney for Property and for Personal Care, which are similar, but not necessarily identical to the Will standards.)
A couple of exceptions may apply. For example, all common law provinces permit people under the age of majority who are in military service to make a valid Will; and in certain provinces minors may make a valid Will if the minor is or has been married, has a common-law partner, or has children who are beneficiaries.
Do I need a Will?
Assuming you’re eligible to make a Will, does that mean you should? In order to answer that question, it helps to understand what happens if you were to die without a Will.
If you die without a Will—called dying intestate—provincial legislation sets out how your assets will be distributed. In most provinces, a spouse receives a set minimum amount with the balance divided among the spouse and any children. If you have no spouse or children, your parents and/or siblings may inherit. It’s important to note that the definition of spouse for intestacy purposes varies across provinces, and may or may not include a common-law spouse.
In addition to forfeiting the opportunity to decide who gets your assets, not having a Will means you have no opportunity to:
Appoint the executor of your choice.
Appoint a guardian for your minor children.
Establish trusts for your minor children, or special needs beneficiaries, etc.
You also forfeit the opportunity to engage in income tax and/or probate planning. The use of multiple Wills and ensuring assets with capital gains are transferred on a rollover basis are just two examples of legitimate planning techniques. Moreover, when you die without a Will, there is no one to release assets to pending an application to court. The court application takes time and will add costs to the administration of your estate.
When should I make a Will?
Preparation of a first Will is most commonly linked to a milestone event. The most common being marriage (or entering a common-law relationship,) or having a child. Purchasing a home also ranks high on the list.
You may need to prepare a new Will as your personal circumstances change, but you should not use that as an excuse for not preparing a Will that addresses your current situation and expresses your current wishes in respect of the disposition of your property. In my experience, preparing that first Will is key to maintaining an effective estate plan and providing peace of mind for you and your loved ones.
Don’t forget about Powers of Attorney. These important documents allow you to appoint someone to look after your financial and personal care needs in the event you become incapable of managing them yourself. While we most frequently associate these documents with loss of capacity in the elderly, unfortunately, any of us may become incapable at any age due to an accident or illness.
Lastly, preparing a Will should not feel like planning for your demise. Instead, think of it as a means of providing peace of mind for you and your loved ones now and for the future.