Nobody likes facing the reality of their own death, so many people neglect to put a formal estate plan in place. Yet doing so will be one of the most important financial decisions you ever make. Estate planning preserves your legacy for future generations.
You have the right to distribute your assets any way you want after death, within certain parameters, but it’s a right you have to exercise. Failing to engage in estate planning could mean that your assets are distributed in a way you wouldn’t approve of. It could also mean that certain things you’ve built, like businesses you may own or family farms, may not survive to serve future generations.
Get your affairs in order today by contacting the lawyers at Merchant Law. We can help you craft an estate plan that will serve your needs.
What happens if you die without a will in Saskatchewan?
Dying without a will is called dying “intestate.” In Saskatchewan this means your assets will be distributed as provided for in the Intestate Succession Act. The court will appoint an administrator to distribute your assets according to a fairly straightforward schedule.
If you have a spouse and have children in common with that spouse, all of your assets will go to your spouse. If you have one child from a previous marriage your current spouse will get half and the child (natural born or adopted) will get half. If you have more than one child from a previous marriage your spouse gets ⅓ and the children get the other ⅔.
If any of your children are minors their share will go into a trust and will be held by the Public Trustee until they are old enough to claim the funds. This means the funds will not be available for a guardian to use on the child’s behalf.
If you have no spouse and your children have not survived you the Intestacy act favors your blood descendents or descendents of your adopted children. If there are no descendents the estate can go to your parents or to their own descendents: your siblings, nieces, and nephews. If none of the above exist the court will go looking for other next-of-kin.
If no next-of-kin can be found, your assets go to the province.
You can swiftly see the problem. What if you want to provide for step-children too? What if you absolutely hate your brother and he ends up getting your assets? What if there’s a cash strapped member of your family who you want to help out, and that person isn’t one of your descendents?
When you die without a will, you lose control. When you take the time to engage in the estate planning process you gain it.
What is probate?
Probate is the legal process of validating a will. It also is the process of authorizing your executor to administer the estate on your behalf.
Financial institutions often require the probate process before they will release bank accounts to your heirs. Saskatchewan also requires the probate process if the decedent owns any property within the provincial borders.
Probate can protect your loved ones and your assets, but sometimes it’s desirable to keep some assets out of probate just because it creates a delay. Estate planning can help you do this. For example, payments from life insurance policies go to your beneficiaries regardless of what happens during probate. If you have put some assets into a trust those can pass to the beneficiaries of the trust immediately.
Probate is nothing to be afraid of, but it is something to account for.
Do you need a formal estate plan?
If you have any significant assets then yes, you need a formal estate plan, and it is wise to involve a lawyer.
It is possible to create a legal will without a lawyer. You can even handwrite one: holograph wills are legal in Saskatchewan. But that isn’t estate planning, and it won’t necessarily achieve what you want it to achieve.
Many people have life circumstances too complicated for a simple will. You should consider formal estate planning with a lawyer if you:
- Have assets in excess of $250,000.
- Have had multiple marriages, especially if you have children from multiple marriages.
- Have step-children.
- Own multiple parcels of real property.
- Own one or more businesses.
- Own income-bearing intellectual property.
- Want to leave any portion of your property to charity.
- Have disabled or dependent family members you need to protect.
Think carefully before assuming your situation is simple enough to do without estate planning services. If your situation is really that simple then the estate planning process should be quick, easy, and affordable. Either way you’ll know you did the right thing, and it’s hard to put a price on that kind of peace of mind.
What should you bring to an estate planning appointment?
Your estate planning appointment will be more productive and useful if you bring all of the documents your lawyer will need to understand your estate and your needs. This includes:
- Bank statements for all accounts and all account types.
- Tax returns.
- Real estate deeds.
- Profit and loss statements for all businesses.
- Agreements and articles of incorporations for all businesses.
- Stock and bond certificates.
- Titles for vehicles, including boats.
- Life insurance policies.
- Lists of valuables and collectables like paintings and numismatics.
- Licensing or royalty agreements for intellectual property.
- Copies of all of your bills.
In addition, you’ll need to provide the names, addresses, phone numbers, and where possible, DOBs and social insurance numbers for the following:
- Your chosen executor.
- The person you want to name as your children’s guardian.
- All beneficiaries.
Note that you should speak to your chosen executor and guardian prior to going to your appointment so you can obtain their permission to be placed in these roles. The courts can’t force your executor to do the job if they don’t want to, and the courts definitely can’t force your chosen guardian to take the kids if they’re not ready to do so.
It’s also worth noting that your first estate planning appointment will be one of many estate planning conversations you’ll have during your lifetime. Every three to five years it’s a good idea to touch base with your lawyer so you can update your will, ensuring that it continues to reflect your financial situation in an accurate way.
How much does it cost to write a will or estate plan?
Neither a will nor an estate plan cost very much to make. We can usually get either done for $300 to $3000, depending on the complexity of your estate and your specific needs.
It also doesn’t take very long to get the job done. A simple will can be done in 24 to 48 hours. If you need to set up trusts or other, more complex estate planning vehicles the whole process can take as little as a week.
Getting your estate plan done is simple and convenient. It’s a small investment with big payoffs. Take the time to get it done right.
What is the difference between a will and estate plan?
A will is one component of an estate plan. It is merely the document that communicates your wishes for how your assets will be distributed after your death.
It’s usually the most important component, but it’s a small part of a broader overall legal strategy designed to help you get your assets into the right hands after death. A solid estate plan can use many other legal vehicles to get the job done, including trusts, guardianship arrangements, medical power of lawyer documents, life insurance policies, buy/sell agreements, joint ownership, and succession planning for your business.
Every estate plan will be a little bit different, which is why it’s so important to consult with an experienced estate planning lawyer when you put yours together. A seamless estate plan will give you peace of mind, assuring you that everything you’ve built will continue to support your family long after you’re gone. It will also account for tax consequences and your family’s unique situation.
Some people only need a will to do all the estate planning they’ll ever need to do. You shouldn’t assume you’ll be one of them until you’ve met with your lawyer to discuss your needs and options.
What is a trust?
A trust is a type of legal arrangement that holds certain assets. Every trust comes with a trustee, a professional who has a fiduciary duty to the beneficiaries of the trust. The trustee manages the assets in the trust and occasionally distributes them when doing so meets the goals of the trust.
A trust may hold any asset, but they’ll usually hold bank accounts and real property.
Trusts may be set up with conditions if necessary. For example, you might have an adult child in his or her twenties. It may not be advantageous to give that person a lump sum of money when you die. Instead, you might want to use your wealth to meet their monthly expenses. A spendthrift trust that issues a monthly check might be appropriate in such a case.
There are two different types of trusts. There are testamentary trusts, that hold your assets until you die and must be probated just like any other asset in the will. Most people who choose to use trusts for their estate planning choose living trusts, which pass directly to the beneficiaries outside of the estate without a need for probate.
Trusts are powerful legal vehicles. For them to function properly they must be set up correctly from Day 1. Your lawyer can ensure that your trusts do a good job of protecting both your interests and the interests of your heirs.
Can a will be challenged in Saskatchewan?
Wills may only be challenged under specific circumstances. It’s not enough for someone to dislike the will or to feel like the terms of the will are unfair. It’s not enough for someone to claim that they received a verbal promise of an inheritance. Instead, the challengers must prove some specific things.
In general, only adult children or the spouse of the decedent may challenge the will, though someone who has a proven financial interest in the estate may also make a challenge. Your lawyer may challenge a version of the will if your lawyer has reason to believe there’s a problem. The Public Trustee may also challenge the will.
Challenges may arise if you’ve failed to make adequate provision for your spouse or children in your will. They may also arise if the challenger can prove the will is somehow invalid. A challenger may also try to prove that you changed your will due to intimidation, duress, or fraud, or that you were not of sound mind and body at the moment that you changed your will. Challenges may also arise if the wording of your will is vague, or if there are mistakes in the will which make it impossible to carry out your wishes.
If the challenge is successful the courts may alter your will, may revert to an earlier version of the will, or may invalidate the will entirely and declare you to have died intestate.
Working with a lawyer can protect your will from challenges.
Why choose Merchant Law?
Our team has 30+ years of legal experience backing it. We’re responsive and caring. We also have a breadth of experience in helpful disciplines like real estate law, business law, and business litigation. We’ve worked with many high net worth individuals who have complex estates and who need the kind of guidance we can provide.
Don’t leave the disposition of your estate up to chance. Call (306) 653-7777 to set up your estate planning appointment today.
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