FYI – Your Province Has A Will For You and It Is Not What You Want!
Do you have a valid will is the first question I ask in my Financial Planning Process as protection of the family is one of the primary functions of a good financial plan. Unfortunately, I have found that less than 50% of the clients I see a have one that is current and reflects what they want to have happen. None of them realize that if they choose not to take the time and money to make out their own Last Will and Testament, the Government of British Columbia (used as an example for the purpose of this article) will do it for them. These are some of the things that could happen if the husband dies under the will imposed by the Province:
- The Government of British Columbia will award my wife the first $75,000 of my worldly goods, plus one-third of the balance, with my children receiving the remaining two-thirds (If one child, half of the balance to wife and half to child).
- The Supreme Court of British Columbia will appoint my wife guardian of my children, but will require of her that she report regularly to the Surrogate Court and give an accounting of how, where and why she spent the money necessary for the proper care of my children.
- Should my wife require money to maintain my children, she shall have my permission to go to the Courts in order to encroach on the remaining two-thirds of my estate.
- I realize that there are certain legitimate avenues to lower the taxes payable at my death but with instead that the Government of Canada and British Columbia get the money that would otherwise have gone to my wife and children as a result of these savings.
- If my wife dies before me, the Supreme Court of British Columbia will order my relatives to decide on the guardianship of my children. If my relatives cannot agree on a suitable guardian, the Surrogate Court will do so, and will be free to nominate a social worker, or anyone else, as guardian of my children.
- At age 18, my children have the right to hire a lawyer to demand of their mother a complete accounting of all her financial actions with their money.
- At age 18, my children have the right to withdraw and spend their share of the estate. They can spend these shares in any way they please, and no one will have the right to question their actions.
- Should my wife remarry and not make a Will, the Government of British Columbia guarantees that her second husband will get one-third of everything she inherited from me. He is not required to spend any part of his share for the children. Furthermore, he may exclude my children from his share of my wife’s estate may merely writing a Will to that effect.
An interesting question arises if the wife does not have the share of the estate for the children at age 18. What if a large portion of the estate is in the family home. The child could bring action to get the mother to sell the home in an extreme situation.
If the deceased is part of a partnership, the partnership is immediately disolved and the deceased estate is owed half the value of the business. How will that money be raised? Will the surviving partner be able to continue the business after paying out half the value to the estate? If the deceased is a shareholder in a small firm – what provisions have been made to purchase the shares back from the estate? Do the remaining shareholders want the estate as a shareholder with the power to dictate decisions?
These are some of the issues that are addressed in Buy/Sell Agreements which are essentially Business Wills and are equally important to the financial security of the Business Owner’s family.