I’m of an age (early 30s) were I am increasingly having serious conversations with friends. In light of my work, I am often asked some serious questions with a legal or estate planning angle. Some of the more common questions are some version of “am I at the age where I need a will?” and its close relative, “do I really need a will even if I don’t have anything to give away?”
My answer to both is yes. There is no minimum age at which it makes sense to make a will (at least once you’re over 18), nor is there any minimum threshold for assets. The reason is that making a will isn’t just about money and deciding how to split it up after you’re gone. It’s also an important opportunity to do at least three other things:
- Decide who will be involved in making decisions about your estate (regardless of its monetary value);
- Exercise your testamentary capacity (that is your right to choose what happens with your estate);
- Set out who will look after your (current or future) dependants.
Selecting Who Will Make Decisions About Your Estate
Deciding who will be involved in making decisions about your estate is crucially important for anyone, regardless of age or the dollar value of their estate. Your estate is much more than just your financial assets; it includes all of your personal property as well. Even if all that you own isn’t worth much to someone else, it is likely worth a lot to you. The best way to protect that value is to ensure that the right person or people are deciding what should be done with your things. Moreover, if you don’t decide who should be in charge of your estate, the law presumes to know who you would have chosen. Ultimately, a judge will award the job of managing your estate to your closest relative that makes an application to do so. For a lot of my friends, the person (or people) who is presumptively eligible to deal with their estate (often parents or siblings) is the last person they would designate to deal with their sentimentally valuable property.
Exercising Your Testamentary Capacity
Exercising your testamentary capacity encompasses the point above about choosing who will look after your estate for you. It also means getting to make decisions about who will inherit, or who will specifically not inherit, from your estate, regardless of value. There’s no rule that you must divide your estate among your family, or include all of your siblings, or make each share an equal size. You can be as creative and selective as you want! Want to leave everything to two siblings and cut out another – go ahead. Want to make sure your favourite aunt gets a bigger share than anyone else – you’re entitled! Want to leave everything to your best friend – by all means. Our system prioritizes people’s right to be as arbitrary as they want. Making a will is a highly personal exercise, and it should reflect your personal wishes. And again, if you don’t make a will the law presumes that it knows best in how to divide your estate for you. You may not be happy with the outcome when the decision gets made for you, so better to call the shots yourself.
Arranging Care for Your Dependants
Setting out who will look after your dependants is typically the point that gets most of my friends on board. Many of my friends have young children, and though they don’t like to think of their kids being left without parents, many find it reassuring to know that they can take steps to ensure that those kids wind up with the right people should it come to that. Designating a guardian in a will is only temporary; ultimately the decision about where a child ends up is made by the court on the basis of what is in the child’s best interests. But designating someone in a will means that there is someone in place for the immediate short-term who can look after your child right away. It also presents a very compelling argument to a court that the person you have designated should be the long-term permanent guardian.
Lastly, an important thing to remember is that estate planning isn’t locked in time – it is always forward-looking. The point isn’t just to make a will that can adequately deal with your estate today, but to make one that will work for you in the future when you will invariably be older, and with some luck, have a more valuable estate to give away. All the more reason to make sure to make a will that reflects your interests, involves the right people and ensures that the things that are important to you, end up with the people who are most important to you.
At Mills & Mills LLP, our estate lawyers can assist you in developing a will and an estate plan that considers the above factors, among others, to best suit your needs. To learn more about how we may be able to assist you please reach out to us online or by telephone at (416) 863-0125.
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