January 6th, 2021 by Colin Flannigan

Now that the calendar has turned to a New Year, creating or updating your will should be on your New Year’s Resolution list.

A will is one of the most important documents that is often overlooked. Discussing your own mortality is not an easy subject however if you have a young family, easing some of their stress when you pass on is a must. A will gives you the opportunity to decide how your estate and personal belongings will be distributed and who will receive your benefit. By doing a will, it removes surviving family members to try and decide what you would have wanted. This can sometimes lead to arguments and fighting within the family. Avoid all of that by creating a will.

Associate Colin Flannigan and our team can help you create a will that best suits you and your family. He discusses some options with Phil Johnson on AM 1150.

FH&P Lawyers · FH&P Lawyers Law Talk - Getting a Will


Phil Johnson: Colin Flannigan from FH&P Lawyers joins us because during these days of COVID-19 with the death toll increasing regularly and the numbers starting to arch up the big question to you is do you have a will? For a whole lot of people wills never seem to be a big deal but in these days of COVID-19 it absolutely is. Colin Flannigan in his email to me wrote make a will, make a will, make a will. Mr. Flannigan good morning to you, make a will.

Colin Flannigan: Morning Mr. Johnson thank you very much and it’s truly sobering when you read and go over those numbers again. It just reminds us where we are and what I was hoping to talk to you about today and you are bang on the nose as we enter the New Year people are thinking about New Year's resolutions and really the top three things on your list should be making a will. As far as your legal New Year's resolutions go it is so important and it's something that is so often overlooked. Sometimes people think what I want is modest or it's not complicated, do I actually really need a will? The short answer is yes you do, it’s a starting point when you pass away it's already tough enough on our friends and on our family members we should really do the bare minimum just to make it easier on them. When we pass away without a will there is so much uncertainty that arises from the first questions of who has authority to deal with the funeral home? Who is going to be taking care of making sure that our bills are paid? What's going to happen with the distribution of our estate? These questions always arise when someone passes away without a will and can be extra stress and strain that it puts on the family members and the friends. It’s really difficult to see when it is so easy and avoidable.

Phil Johnson: Is it the fact that we just don't want to recognize our own mortality, by doing the will we actually are starting to think about death and dying and it's just a subject that a whole lot of people just don't even want to think about? They want to keep it locked away in some black dark closet somewhere they just don't want to bring this idea out into the light what is it?

Colin Flannigan: That’s one of the items, for many different people there is different reasons why they have a hesitancy to make a will. Sometimes it depends on your age, your life circumstances, sometimes for younger people they don't think that is necessarily applies to them, they think while “I'm younger, I’m in reasonably in good health, I don't need to worry about that.” Well if you have young children then absolutely you do. Accidents can happen, the unforeseen can happen, you don't plan to pass away but it's going to happen to all of us and it's something that you want to make sure it's going to go the way you wanted to. For some people you are right, they don’t want to face mortality if they perhaps are of declining health or in those golden years and thinking well I don't want to think about the end that's coming I'm just don't want to go there mentally.

Phil Johnson: Well you know the man or woman that walked out their kitchen door this morning and climbed into their family van, or pickup truck or car found themselves going through an intersection at 8:17 this morning and their vehicle was broadsided by a bus, a big rig or whatever and that personal family vehicle vaulted through the intersection rolled over three times and as the person who was hanging upside down in the cab, the interior of that vehicle with their seatbelt feeling their life slipping away, I don't think that they thought I wish I had done that will, but certainly their family members say I wish you had done a will and I guess that's the moment in time because we just don’t think that accident is going to come to us.

Colin Flannigan: Absolutely for those people that just don't want to think about mortality as well, to as a personal anecdote the comment that I often hear from people that are really stressed out find it very difficult to really deal with the situation and think about it, is the common sense of relief I hear from people is when they actually set the plan and finally sign that will and it's in place that it's like a weight off their shoulders. It's something that they didn't want to do but it's so important to do and when it's finally done, it can make you feel a lot better.

Phil Johnson: The reality is, and I just last week said this to a friend of mine who's doing with the death in the family and I said well you know the reality is that your dad isn't going to a place where you and I are not eventually going to go. We are all going to have this occur to us nobody is immune to, or escapes death and dying. I would agree with you, I'm sure once somebody is created the will has received that seal from you sitting there at your desk they get a copy of the will to take home with them and leave a copy with you to put in a file somewhere, the sense of relief must be palpable.

Colin Flannigan: Absolutely, it's not a pleasant thought process to have to think about our own mortality, I can respect and I can appreciate that. I don't like thinking about my own mortality but one of the importance to stress the people is why this is so important because when we pass away without a will the first question that arises is who is going to deal with the funeral home? Who's going to have the rights to our human remains, our cremation remains if that’s the way that we want to go, that’s the first question. Who's going to deal with Canada Pension Plan, accessing information and what's going to happen to our belongings? If you don't do will it's just settled by statue. There is no specifying who gets what items it just goes into the bulk set by statue and if there isn't family members and can possibly even go to the crown and we use the term sheet. So when people think about the importance of having a will, there are a lot of things you can put in the will. First off you can to choose you executor, you get to choose who deals with the funeral home, who deals with your final wishes, you get to decide on what happens to different items. If you want to have personal belongings, if you want personal items that are sentimental to go to specific people you get to make that decision you have the power to choose that. You also get a deal with the question about what happens if some of the family members that you want to receive a benefit pass away before us? You get to decide what happens in those situations. There are other issues as well that sometimes people don't turn their minds to which is thinking, okay well if I were to pass away I just want everything to go equally amongst my two kids, simple and straightforward. What happens if one of your kids passes away before you, but they have children themselves and they are minors? If you do a will you get to decide what happens there.

Phil Johnson: I need to jump in here and I'm just intrigued, is there an age when an individual now takes charge of that piece of their life, is it 18 when you are expected, as you reach the age of majority that you now need to be responsible for that yourself or is it younger? We have never had that conversation but is there a point where an individual now is handed that power?

Colin Flannigan: What I would say to people, bare minimum is 19. The reasoning for that is if someone is entitled to a benefit and an estate before they reach the age of 19 and they are to receive it absolute. That's just fancy terminology if someone is to receive a benefit as opposed to being held in trust for them. If they are to receive this benefit absolute then the next thing is to complication in dealing with the estate from legal process in which is applying for either probate or grant administration and that is involvement of the public guardian and trustee. When someone is a minor beneficiary who's entitled to this benefit the public guardian and trustee needs to be involved in that court application. They need to have the material sent in advance, they need to review them and decide on questions about does this situation where bonds will be required or is this going to be a fairly straightforward application and that’s just the first part. The second part is this, if there is no trust clause then the public guardian/trustee will be the ones that actually administer that portion of the estate until that person reaches age 19. It is very important if we are thinking about having minor in a family and household that might see the benefit it is so important that we deal with this as far as putting it into a trust. We also have a lot of flexibility with trust and it is not just put it into a trust and it’s simple and it is done. We can decide what we want that trust to be used for, as far as okay maybe lt’s hold it in trust until Johnny reaches age of 25. Let’s be honest sometimes our physical maturity is not necessarily developed rate at 19, 20, 21. So you think, maybe we can hold it in trust for Johnny until he reaches 25, but what happens if we want certain benefits to be used on his behalf before he reaches 25? We can do things like that, we can set it up so Johnny wants to go to school he can use that for education. Maybe he has health issues, this money in trust maybe able to be used for healthcare needs or quality of life, you can get very creative with these. One of the other questions is who do you want Johnny’s trustee to be? This is another thing that gets overlooked when you start talking, it’s about family dynamics. This is so important when we start looking at creating the will and saying not only executors, but who is going to be the trustee of specific trusts in there? You get to decide on who you think is going to have the best relationships. Sometimes relationships can be complicated in some families, especially in blended family scenarios. Those relationships can get very complicated and making the decision is always a wise choice because you get to make sure things are going to be as smooth as possible because we don't want to add extra strain on relationships. If relationships are already strained, then you add in grief of losing a loved one and a monetary element as well, it could make that relationship worse. It might make it better, but it could also make it worse so this is something we should really be turning out minds to and thinking how do we make our loved ones better from this?

Phil Johnson: Colin Flannigan talking about wills and the need for in these days of COVID-19 and the challenges that come your way. You can find him in the offices of FH&P Lawyers.

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