Separating from a spouse or long-term partner can change almost every aspect of your life—including parenting, housing, finances, holidays, friends, family rituals and habits.
Whether by choice or not, you are starting a new chapter of your life and there will be many changes that you won’t have control over. Such is life, unfortunately. Decisions about parenting, child support, spousal support and division of matrimonial property can be agreed upon by you and your spouse, mediated or decided by a court. But with careful planning, diligence and a good team of advisors on your side, you can take control of your future. This can be done in various ways, but one important consideration is the benefit of estate planning.
Wills are not something most people like to think about, let alone talk about. Very few people, in my experience, like to talk about their death and the consequences it will bring to their loved ones. Unfortunately, no one can escape the inevitable, and it’s prudent to be prepared.
Many people have asked me why a will is necessary, and some have even argued that they don’t need one. But the main benefit of having a will is that as soon as you draft it, you are in control of your estate. Without a will, your estate devolves without a will (intestate), and that means that statute is in control and determines who gets what.
Having control in drafting a will means that you can determine who will be the executor of your estate. This should be a person that you trust without question. If you have minor children, you determine who will be their guardian, with whom they will live and how they will be taken care of. You determine at what age they may inherit from the trust that will be created for them on your death. You also determine who inherits from you and how much.
Two other documents are necessary to complete an estate planning package: an enduring power of attorney and a personal directive. With an enduring power of attorney, you appoint a person, (again, someone you trust implicitly), to look after your legal and financial affairs if you become incapable of doing so. When you become incapacitated without an enduring power of attorney, someone, usually a loved one, will have to apply for an order from the Court of Queen’s Bench under the Adult Guardianship and Trusteeship Act to be appointed as a trustee to make financial decisions on your behalf.
A personal directive is a document that appoints someone to make medical and other personal activity decisions for you if you become incapacitated. These decisions might include where you should live, if you should receive medical treatment and what kinds of medical treatment you should receive. If you become incapacitated without having a personal directive stating who should make decisions on your behalf and what decisions can be made, someone will have to apply for an Order from the Court of Queen’s Bench under the Adult Guardianship and Trusteeship Act to be appointed to make these type of decisions on your behalf.
With proper estate planning, you can provide for your family, keep your children with a person you trust, minimize your estate’s expenses, save your family from having to make difficult decisions and plan for incapacity.