Scene one: After you die, if you’ve done everything right, your family will sit around the living room looking at pictures and talk about love and family.
Scene two: Your family will gather in a court room to battle it out over their inheritance.
Which scenario? The choice is yours, says lawyer Les Kotzer of Fish & Associates of Toronto. (He provides the following information based on Ontario law. Because laws vary from province to province, he recommends speaking to a wills and estate lawyer in your jurisdiction.)
Kotzer, a wills lawyer since 1989, has seen it all and says he knows how to avoid the family fight. There are lots of points to consider. Even parents who divide their assets equally between their heirs can be unintentionally setting the scene for sibling spats.
Drafting a will that divides assets equally sounds good, but if you have given more money to one child in your lifetime (such as help with university, a wedding or purchase of a house) it may be seen as unfair because one child has already received more than their sibling or siblings. Or if one child was the caregiver, giving up their life to look after a parent, is it right that the siblings who never helped out get the same amount, Kotzer asks.
And if that child/caregiver lives in the house but it’s left to be divided between three children, if two want to sell, the caregiver may be left without a place to live.
“Don’t assume the kids will work it out,” he says. “You decide. And don’t assume goodwill.”
Assumptions can create trouble. Don’t, for example, assume your eldest child should be the executor. If there are two children, make both executors and they will have to work together. If there are three executors, majority rules.
Personal items, such as jewelry, can also ignite fights. Kotzer says he and associate Barry Fish returned to their office one day to find a woman in their parking lot. “She was waving around a crystal vase and screaming that the vase belonged to her and not the estate because she bought it,” Kotzer says. When he and Fish, who were handling the estate, explained that it was part of the estate because it wasn’t specifically listed in the will, she smashed it so no one could have it.
The best way to avoid such problems is to “give personal effects in your lifetime,” he says. You could list specific items in the will, but there is even danger in doing that.
Kotzer says it’s best not to include a list of items in a will. “If your will says you leave your house on Yonge Street to your son Bill, but your will was not updated when that house was sold and a new one purchased, Bill won’t get anything because you no longer own the Yonge Street house” and the will didn’t provide for him to inherit the new house, Kotzer says.
If something is listed in the will but is no longer owned, that person will get nothing.
Here’s another Kotzer tip: it’s best not to make your children partners in an asset like a cottage or second house.
One woman left her Arizona condo equally to her two children. Kotzer says one was a slob and one was a neat freak. After many arguments, the neat freak got fed up and threw out the slob’s possessions. The slob then tossed out his neat sibling’s belongings. “It was a war zone,” he says, adding that this situation often arises when the family cottage is left to share. One may not want to pay for repairs.
Another important consideration when it comes to wills is assets that have named beneficiaries, for example life insurance policies or RRSPs. “The bank overrides the will,” Kotzer says. So if one child is listed as a beneficiary, that is who will get the asset. Because it’s not part of the will, that beneficiary is not required to share.
“Seeds of destruction are planted by the parents if they leave it up to one to share with the other,” he says.
When it comes to second marriages, even more care needs to be taken to have a proper will drawn up. “Second marriages are a potential landmine,” Kotzer says.
Marriage revokes a will, so when you get married, get a new will to ensure your assets, and those of your heirs, will be divided as intended. You don’t want your second spouse to cut out the children from your first marriage, for example.
Another way to protect your adult children is to include a family law clause in case they get separated or divorced. This will ensure that a son-in-law or daughter-in-law will not benefit from what you leave your children.
Keep your will up to date. If you prepared your will when your children were young and they’re now adults, you may want to make them executors.
A basic will can cost between $500 to $1,000, which may seem expensive. But it’s worthwhile to have it done by a professional to avoid legal problems and family feuds after your passing. “A will is a living and breathing document,” Kotzer says. It needs to be updated when family situations change (such as a birth of subsequent children and grandchildren, when the children are grown, change in marital status or death). And having no will means the government steps in and makes decisions on your behalf.
A will is also of utmost importance for parents of young children because wills include guardians. Should you and your spouse die, having a named guardian will avoid fights between grandparents or others for custody of your children.
It’s also best to name your blood relative as guardian, not your relative and their spouse because if they were to get divorced, there may be a custody battle.
Everyone, regardless of age or marital status, needs a will in order to ensure their assets go to the people they choose. Without a will, the government has rules about who gets what.
Kotzer offers free will reviews. He also has videos about wills and powers of attorney on his website, www.leskotzer.com.
Connie Adair is a contributing writer for REM.
