Cover All Bases in Your Will

When giving thought to all of the different considerations in an Estate Plan (Will, Enduring Power of Attorney & Personal Directive)  there are some rather unique items that merit very careful attention when doing your Will.

Many people are familiar with the important items such as appointing an Executor that can handle your affairs and clearly designating beneficiaries.  However, there are certain items and issues that are perhaps lesser-known and often overlooked that should be specifically addressed by the person making the Will.  These include the following:

Digital Assets

In this day and age when almost everything is online (particularly with the current pandemic situation), it is vital to ensure that your Will contains a digital assets clause.  This clause gives your Executor specific powers to deal with your digital assets.  Sounds great…..but what exactly are digital assets? These include many things such as:

• • passwords
  • accounts
  • loyalty points
  • license to use different pieces of digital items such as music, movies, other forms of entertainment (Netflix, iTunes, Spotify etc.);
  • social media accounts;
  • e-mail accounts; and
  • really be anything that you might access through your computer or your phone.

Because the law that governs these digital assets can be uncertain – particularly in respect of what legal jurisdiction takes priority – it is important to have a broadly worded digital assets clause in your Will as your goal is to make it as easy as possible for your Executor to deal with your affairs.

Pets

For many people, their pets are an integral part of their family and it is a bit of a rude awakening to find out that in the eyes of the law your pet is nothing more a possession (or as us lawyers like to call a “chattel”).  What this means is that you cannot gift anything to your pets in your Will and instead you need to set up specific arrangements with people to take care of your pets when you are gone.  It is important to realize that you cannot just unilaterally impose this obligation on any of your friends or family.  Even if they agree in advance, they must then further agree to take on this responsibility shortly after the time of your death.

It is also important to ensure that you have sufficient resources available for any friend that is going to take on this responsibility. However, it is equally important to understand that it would likely be cost-prohibitive or administratively very challenging to put oversight and restrictions on a gift of monies to be used for the care of pets.  Once a client asked me if the person they are giving a gift to intended to be used to take care of their pet could simply take the money and then drop off the pet at the Humane Society. Generally, it is very difficult to prevent people from acting in this manner by the words of a Will. What I more often tell clients is that if they are picking someone that they have such concerns about, then perhaps they should pick a different person!

General Gifts

What this means is that the more that your gifts are  – for example – a percentage or a share of your total estate, the more likely it is that your Will remains appropriate over time and that your executor will be able to deal with your estate in a more efficient manner.

Where Estates often run into problems is where there are numerous specific gifts (a car, a piece of art, a bank account) and then the executor has to navigate what happens if the car in the – say 10-year-old Will – no longer exists.  The other thing that can happen is that if a specific gift is given of a dollar amount that is close to or exceeds the value of the estate, it can end up defeating the residue gift which usually goes to the person closest to the deceased. For example, suppose Bill gifts $500,000.00 dollars to his friend Jim, with the residue of the Estate to his sister Sue.  When Bill dies, he only has $600,000.00.  What will happen is that Bob gets $500,000.00 and Sue gets the remaining $100,000.00.

This may be an oversimplification, but it hopefully illustrates the concerns of giving dollar amounts or specific gifts that could end up having a much larger impact on your Estate than intended.

About Mike Simons: 

Mike works with clients in all areas of Estate Law including court applications for Grants of Probate to allow for the proper administration of an estate. Mike understands the strains and stresses of this process and actively fosters communication between the parties involved in order to resolve any issues that arise before they grow into conflict. When conflict is unavoidable Mike applies his knowledge of Estate Law to Estate Dispute and Litigation matters including Family Maintenance and Support claims, working in conjunction with his litigation colleagues.

Mike enjoys helping clients with their Estate Planning, ranging from the preparation of straightforward Wills and related Trusts, Enduring Powers of Attorney, Personal Directives, as well as working in conjunction with other professional advisors to implement more complex tax-planned strategies.

Family business succession planning is also a focus of Mike’s, working with both Business and AgriBusiness clients.

As an active member of the legal community, Mike is a member of the Law Society of Alberta and the Canadian Bar Association including the Business Law and Real Property Law sections and is a Past Chair of the Wills, Estates and Trusts section.  Mike also volunteers as a speaker with the Edmonton Community Foundation.

Prior to entering into the practice of law Mike had a six-year career in the retail and wholesale wine and spirits industry and has been active in several political organizations and campaigns. As a partner with McCuaig Desrochers LLP, Mike assists clients with practical advice drawing upon his business, political and community experience.