What is a will?

A will is a written document, when, which properly signed:

• specifies who is to administer the estate (the executor),
• specifies what is to happen with the assets and liabilities of the estate,
• specifies certain other wishes such as guardianship of children and burial instructions,
• takes effect only upon an individual's passing.

The effect of the will is to provide a court-approved authority to an individual(s) to sign documentation on behalf of a deceased person and to give direction how to deal with the estate.

In order to transfer assets or enter into contracts, different individuals may sign on behalf of a person. At birth, we don't have the legal power to enter into a contract. Normally parents or a guardian sign documents on our behalf until we are of legal age. At that point in time, we are entitled to sign for ourselves. If we become physically or mentally incapable, a power of attorney, (if one exists) or a person designated by law is entitled to sign on our behalf. Similarly, after our passing, someone is appointed to continue to sign on our behalf. The individual is identified as an executor if there is a will or to an administrator if there is not a will.

• If there is already a will in place pre-baby, it will need to be updated to reflect the changes in your family life.
• If there is no will in place, one should be drawn up as soon as possible.
• There are 3 types of wills:
  • Holographic (handwritten)
  • Will kit from a stationary store
  • One drawn up by a lawyer
• After speaking to many lawyers, it would seem that it is the best to go and see a lawyer and have it drawn up professionally. Both a husband and wife together usually runs about $200 (give or take) and then you have the assurances that it is done professionally.
• There are 3 main reasons why it is so important to draw up a will, with regards to your new family situation:
  1. To name an executor. In your will, you will name the person whom you trust to take care of settling our estate, distributing your assets according to your wishes, and, most importantly, taking care of the money set up for your children. If there is no will, thus no executor, the government will appoint a trustee to do it on behalf of your estate.
  2. To spread out the distribution of the assets of your estate to your children over a period of time. If there is no will, the children will automatically receive the estate at age 18. They may be prone to pitfalls, bad advice, over-generosity to others etc. By setting up a will, you can spread out the monies over a period of time, for example, 10% at age 18, 20% at age 21 and the rest at age 25. They may not make the best decisions at age 25, but at least they may more maturer to handle the money.
  3. Lastly and most importantly, to name a guardian in the event that both of you should pass away. You of course are not planning to not be there to watch your new baby grow up, but in the event that this should happen, you will need to discuss who you would want to raise your children. If a guardian is not named, there could be many disputes between family members as to whom should care for the children and the final result may not be what you would have wanted. If it is specifically spelled out in your will, there is less room for conflict.

Two other things to consider when discussing this topic with a lawyer:
Power of Attorney and an Enduring Personal Directive

The Power of Attorney is discussing generally, financial matters, and the Personal Directive is relating to personal care. The Power of Attorney is useful in the case of incapacitation. Although you may have a lot of things joint, in the case of a house for instance, it cannot be sold without both signatures, and if your partner cannot sign, and you have no Power of Attorney, you have to apply to the court to be named as such. In the case of the Personal Directive, although in most cases, the hospitals will allow the next of kin to make decisions, if there is no such thing in place, and others contest a decision, for example, removal of life support, it is much easier to have these things spelled out. If you do the wills, the Powers of Attorney and the Personal Directives all at the same time by the same lawyer, are approx. $450.