At MacMillan, we have the privilege of working with many wonderful clients. The individuals and families we work with are highly successful, and many of them already have a strong sense of what they want from their estate plan and their retirement. However, we still hear quite a few myths about wills. Here are few that someone you know may believe.
Getting Married or Remarried Won’t Affect My Will. Before getting married, it’s always a good idea to check in with your personal estate advisor. They’ll be able to let you know how your upcoming marriage will affect your estate plan. In some jurisdictions, a new marriage will completely void any existing will.
This can place seniors at particular risk if a much younger person is marrying them for financial gains. As long as the senior doesn’t rewrite a will, they will be declared to have died intestate (without a valid will). Provincial or state law will then dictate how the deceased senior’s assets will be divided, and the young spouse will likely inherit many assets meant for others.
I Only Need a Living Will or a Last Will and Testament — Not Both. This misconception probably comes from the fact that both types of wills work similarly. They both appoint a person to be in charge of your estate (in the case of a living will, this person will be in charge of both your finances and your health) and convey your wishes for a situation when you cannot speak and decide for yourself. However, they differ in one important way: a living will only exists while you are alive, and a last will and testament is only enacted after you’ve passed away.
That means there is no overlap wherein both documents would simultaneously be working. If you only have a living will, when you die the division of your assets will be decided by provincial or state policy. If you only have a last will and testament and become incapacitated at some point, your family won’t be able to control your finances or make health decisions on your behalf. They will need to go to court to get this power, and that can take months.
My Will is Online. There are numerous apps and online services that claim to digitally store your will. But many jurisdictions, including all of Canada, do not accept digital wills. In order for a will to be valid, it will need to be written on physical object and signed. There have been many odd wills over the years when people have been in tragic circumstances.
A Saskatchewan farmer, Mr. Cecil George Harris, who became trapped after a tractor accident scratched his last wishes into the fender of the vehicle with a pocket knife.
“In case I die in this mess, I leave all to the wife. Cecil Geo. Harris”
This scratched fender-will was accepted as valid by the Canadian courts, but so far digital wills are not.
My New Partner Will Inherit Everything Anyways. While this may be true, life and laws are often more complicated. This is especially true for individuals with significant assets and children or grandchildren to consider. If you marry your new partner, any previous will becomes invalid. However, if you separate (but don’t divorce) your previous partner, your previous will is still valid, and your assets would go to your ex. Similarly, if you separate (but don’t divorce) your previous partner, and you die without a will, your assets will go to your ex.
But let’s say you do remarry and all of your assets pass to your new partner. Now there’s a question of what happens to those assets when your partner dies. They could easily cut out your bloodline if you had children with your former partner. They may get remarried and leave everything to their new spouse, effectively removing all of the wealth you accumulated from your family forever. If you have significant assets and a bloodline to protect, letting provincial or state law deal with your estate isn’t a real alternative to having a personalized estate plan.
When you partner with the personal estate advisors at MacMillan, our team helps you to navigate legal misconceptions to create a strong room of documents to protect your assets. We’re here to ensure your wishes are understood and your legacy continues as long as possible. Contact MacMillan Estate Planning for a free consultation today.