Who Will You Choose?
Posted by John Draper | Filed under Money & Family
Every where I go I talk about the importance of making a Will. Yet, even among the financially savvy, a Will is one of the last things people seem to get around to making. It may be a general unwillingness to face life’s darker side. Or it may be that there are things people just can’t seem to decide on, so they procrastinate.
In order to make a Will, one of the first things you must do is choose your executor, and for many people this is a stumbling block. Horror stories about about estates that were mismanaged, beneficiaries who almost came to blows, and the “waste” of having a professional do the job.
So what exactly are the responsibilities of an executor? Most people have no idea how big a job it can be. Yes, a simple estate will wrap-up smoothly; a more complex one can drive you to drink. Your executor will have to complete a number of tasks including gathering and protecting your assets, forecasting your family’s cash needs, handling tax requirements and distributing your estate.
You can name someone to act alone (a sole executor), with others, (a co-executor) or as a backup if the first appointed executor is unable to act (a contingent or alternate appointment). Whomever you name, make sure you get their agreement since that person has the right to turn down the job. While it’s often positioned as an honour, it’s more like a pain in the butt and only someone who is truly fond of you, or someone being well paid, will take the job.
Some people choose to name friends or family members as executors because these people are more familiar with the personal details of their lives. While a spouse or child might seem a natural as executor, having to do the job alone can add more stress to an emotionally stressful period. Executorship can be a time-consuming task. Without financial or investment knowledge, your partner, child or dearest friend could be out of his or her depth. And if your executor is too emotionally involved, that can muck up the process.
So who should you consider? First of all, you have to choose someone of sound mind. To act, the person must have attained the age of majority, so your minor children won’t be able to act until they’ve reached adulthood. Here are some of the most obvious choices.
Your life partner: This can be a good choice if your assets are relatively uncomplicated. An estate made up of bank accounts, term deposits, a house, an RRSP and pension benefits wouldn’t be difficult to administer if it was going outright to a surviving spouse. If the assets are complex, or if there are testamentary trusts involved, then a co-executor with knowledge and expertise in the areas of investments, income tax, trust matters and accounting might be a good idea.
One or more of your children: Mature adult children will likely be familiar with your assets and the ways in which those assets have been managed and can keep costs down. However, unless they have had specific training in a profession such as law or accounting, children may lack the expertise to complete the administration of a complex estate.
Friends and Business Associates: Same-age peers may find themselves acting as executor at a time when they themselves need help in managing their affairs. Choose an older executor and she may die before you. Or he may die during the administration period at which point his executor — someone you may not even know — will have to take on the administration of your estate.
Family Lawyer/Accountants: A logical choice, right? Maybe not. Unless your family lawyer is set up to do estate administration, he may not be equipped. It’s kind of like going to a dentist to have your baby delivered. Lawyers should be considered only if they have a sound knowledge of estate law.
Corporate executors: Trust company employees are experienced, neutral and available 52 weeks of the year so your estate administration won’t be delayed because of illness, vacation, or business commitments. Professionals also tend to have a wealth of experience having handled thousands of estates. And a corporate executor has the facilities to handle the paperwork, tax returns, valuations and so forth, which often can be a mystery to the uninitiated. Of course, you’ll pay… and it could be a lot.
Choosing your executor is just one step in making Will. If you have minor children, you will also want to choose a guardian. No matter who you choose for these jobs, the job of actually drawing up the Will should go to someone who is an expert in estate planning. Resist the urge to do it for $29.99. You may feel you’ve covered your bases, you may have inadvertently left a mess that will cost a fortune to untangle.
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September 10, 2008 at 11:58 am
After the death of my father, I know the value of a will, and my husband and I have ours done, and have named guardians for our children as well. I would definitely recommend also having a Living Will, and a Power of Attorney. My father was older, and thankfully, had a Power of Attorney (my uncle). This enabled my uncle to handle my father’s finances when my father could no longer do so (Alzheimer’s). Our family has our documents all done, and on file at our lawyer’s in case anything should happen to us. It isn’t a pleasant thought to talk about death, or being in a vegetative state, or dementia, however, protecting our families in these instances is very important. It doesn’t take much time to get these documents done (at a lawyer’s office), and it is peace of mind for the future. Thanks for another great blog, Gail!
September 10, 2008 at 1:48 pm
Thanks for the reminder-as I get my financial house in order, this is the thing I remain procrastinating about. You’ve inspired me to pick up the phone and make an appt to get my will and power of attorney done. I’ve witnessed the disaster that family members’ wills have created, and would be loathe to put my family through such trauma at a time when they are already mourning.
September 10, 2008 at 1:48 pm
Do I need a will (yet)? My husband and I do not have any children, nor do we own any property or assets. We are only 25 and 27 years old. I know that we will eventually need to have our wills done, but at this point should I be in a panic if I don’t have one?
September 10, 2008 at 2:19 pm
Amy – You shouldn’t be in a panic as long as you’re okay with your husband inheriting everything of yours if you die, or his parents inheriting everything of yours if you and your husband both die following an accident and you die first. In the absence of a will, legislation respecting intestate succession applies and the order of inheritance roughly is
-spouse first
-if no spouse then children
-if no spouse or children then parents
-if no spouse or children or parents then siblings
You should check the intestate succession law in your province. If you are keen for your antique china to go to your cousin, etc. you could handwrite a note outlining all of your wishes and have that witnessed – in Ontario that constitutes a will (known as a ‘holograph will’) but in many provinces it would only indicate your wishes and would not be legally binding.
Same same for health care decisions. If you’re happy for your husband to make decisions (and if he is unable, your parents) then you don’t need to panic about not having a Living Will.
All of the above being said, it would take less than 5 hours of your time and probably about $200 to have these documents drafted by a professional. It is a worthwhile exercise, even for younger people.
September 10, 2008 at 5:13 pm
It is totally worthwhile to have wills drawn up whatever your age or stage of life. My husband and I went to a lawyer and drew up our wills and POAs. With a lawyer helping us, it came to about $700 for 6 documents (2 wills, 2 POAs for finance, 2 POAs for medical decisions) but we know it’s done right and we won’t have to change a thing in it until our children are grown (25 years from now). To me, it’s money (that I have already earned) that is well spent. Brenda’s not kidding when she talks about having peace of mind once the documents are drawn up.
One big thing I learned from the will process was that deciding who gets what is the least of the priorities. Definitely have heart to heart discussions with your loved ones about who will be willing to be the executor(s) of your estate and guardian(s) of your children. You can later include a “memorandum” with your will about who gets your prized possessions which you can change at any time without having to change your whole will.
September 10, 2008 at 6:13 pm
Amy, as long as you and your husband are not going to die together, you should be ok. I assume that you and your husband have named each other the beneficiary of your RRSP (if not, you should go and change it right now). If you both die together, both of you would have an estate. And like Julie says, depending on who die first, your estate might have gone to his parents, or your parents.
September 10, 2008 at 6:40 pm
This is one area where I’m woefully unprepared. I don’t have kids or a spouse, and I’m fine with my parents getting everything should I croak an untimely death. It doesn’t sound like I need a will, right?
September 10, 2008 at 10:52 pm
I’m in the same situation as J. No kids, no spouse. My RRSP and my life insurance is assigned to my brother. He now has two boys, so I may adjust that for them. I have no intentions of having children, I am currently 36. I do believe I will get a POA for finances and health care in writing, so that I’m prepared.
September 10, 2008 at 11:12 pm
I live in Hong Kong and although things are changing here, it is not usual for people not to have wills. Many people are quite superstitious; wills means talking about death, and if you talk about it you will die… as if not talking about death means you will live for ever! Hmmm. Anyway, in particular the much older generation don’t have wills, may have many children from many wives (concubines), and end up leaving a right mess behind. The dirty, nasty court cases brought by feuding relatives make for headline news. And, of course, the only real winners are the lawyers!
Making a will not only makes sure you get a say about who or what (e.g. charity) will benefit from it, but it will also make for smoother family relations and not end up as a Hollywood movie script!
September 11, 2008 at 7:05 am
My hubby and I (no kids) just got this done too.
Very good comments above, but for those of you who do not have a spouse or kids, I’m sure you don’t want the government to get any of your assets, which can easily happen!!!! Just do a simple will with a will kit… maybe leave something to a favorite charity.
Another thought, you need to have plans for if something tragic happens and you are not able to make decisions on your own.
Anyway, even though I’m over 40 and I’m just getting my will done now, I am finally realizing that I could have really been in a pickle if something had happened before now.
I just signed up for this blog and I’m loving it!!!!
September 11, 2008 at 9:03 am
There’s a fair amount of debate on the validity of ‘will kits’ – many sold in Ontario may not have been written by an Ontario lawyer. Personally I’d recommend finding a lawyer to prepare your wills for you. Most are happy to give you quote off the phone, it’s a pretty standard service. A small-town lawyer may be a better choice than a big city one if your situation is relatively simple. When we bought our house I had our lawyer also prepare our will/power of attorney statements at the same time and found it to be cost effective.
September 11, 2008 at 10:10 pm
J… after thinking of the topic a bit, I think it’s still better off for us to have a will.
It is because we still need someone to administer our estate before all the debts and duties are paid.
It’s nice to say that we would leave everything to our parents; however, would our parents be up for the task of being the executors of our estate? If we would actually draw up a will, we could destinate someone who would be more up for the job, while we could still ensure that our parents would get our money.
Also, what would happen if we die after our parents do? Would you be happy to have our estate divided according to the law? And if there would be no relatives wanting to claim our estate, the estate would to go to the goverment. I’m not sure if we want that happens.