A will is a relatively inexpensive document that provides you with the security of knowing your affairs are in order.

It is important that your will is prepared properly and executed in accordance to the Wills Act. IF you fail to follow the provisions of the Wills Act your will be invalid.

A common misconception is that if you do not have a will your estate will go to the government. This is not the case. If you do not have a will your estate will simply be divided pursuant to a prescribed formula.

Upon your death your estate will have to be probated if the value of your estate is more than $15,000.00. If you have a will your executor will control the division of your estate and if you do not have a will someone will be appointed by the court to be the administrator of your estate. Whether an executor or an administrator deals with your estate their jobs are identical except that your executor must distribute your estate according to your will and your administrator must distribute your estate according to the formula set out under the Estate Administration Act.

The government fees for probating an estate whether your estate is distributed by way of will or administration are the same. These fees are approximately 1.4% of the gross value of your estate.

Your will must also deal with your infant children. If you have a will you will appoint a guardian for your infant children. If you do not have a will the Public Trustee will become the guardian of your children's person and estate.

You should think about the following matters before making an appointment with your solicitor to draw your will.

Executors:

You must decide who your Executor will be. In the case of a husband and wife it is usual but not mandatory that the surviving spouse be the Executor of the estate. It is also prudent to appoint an alternate Executor. In the case of small children for whom the Executor may have to keep money in trust for a long period of time you may wish to consider a trust company to serve this function.

Guardians:

If you have children under the age of 19 years you will want to appoint a guardian of their person and estate. If you fail to do this The Public Trustee will become the guardian of their person and estate. You may also wish to appoint an alternate guardian.

Bequests:

A bequest is a specific thing that is left to a specific person, ie: My diamond ring to Aunt Sally or my bank account at such and such bank to my friend Bob.

Residue:

After payments of your debts, funeral expenses and delivery of your specific bequests, whatever else you own will become the residue of your estate. After delivery of the specific bequests you must decide who will get the residue. In the case of a husband and wife often the surviving spouse is the beneficiary of the residue. Subject to certain exceptions the surviving spouse does not have to be the beneficiary of the entire residue of the estate. If the surviving spouse predeceases it is common for the children to inherit the residue however, subject to the same exceptions this is not always the case.

Multiple Death:

You should also consider who will get your estate if all of your beneficiaries are deceased. This could happen in a car accident, airplane crash or fire where you and your spouse and your children are together in the same place.

Income Tax:

There may be certain income tax considerations to be made prior to drawing your will. Our law firm does not give income tax advice but we recommend you obtain such advice. If you wish to obtain tax advice you must do so with your own accountant.