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Considerations When Planning Your Will

Overview

What do I need to think about when planning my will?

There are several issues to keep in mind when planning your will:

  • Who should you name as executor?
  • What property will be part of my estate?
  • What to consider if you have children or a spouse?
  • What to do if you have minor children?

What are the requirements to have a will?

Requirements to have a will:

  • You must be 18 years old unless you are under this age and make a will while in a spousal relationship. A spousal relationship is where you are either married to someone or have lived with someone in a relationship for at least two continuous years.
  • You must have the ability to understand what a will is, understand what type(s) of property you have, who you intend to receive each type of property, and you must want to have your will carried out. You must have both the ability to give instructions about what to include in your will, and the ability to understand the effects of signing your will.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website and the Creating a Will Self-Help Kit for more information.

Who can and should I name as my executor?

Any person over the age of 18 may be an executor. An executor may also be a beneficiary. You can name two or more persons to act as co-executors of your estate. Alternatively, you can and should name alternate executors, who would be the executor if your first named executor was deceased or otherwise unable or unwilling to serve as your executor. Ideally the person or persons you choose:

  • Is someone you trust who will be able to fairly administer your estate either with or without the assistance of a lawyer;
  • Resides in Saskatchewan;
  • Has no interests that may conflict with the interests of your estate. An example of a conflict may be where the executor wishes to purchase a property from the deceased's estate.

Please see the Creating a Will Self-Help Kit for more information.

What property will be part of my estate?

In your will, you can deal with property you own solely. You do not need a will to deal with property that you own jointly with another person. For example, if you own a family home or a bank account jointly with someone else, that property goes to the other person when you die. Anything you say in your will would not affect property you hold jointly with someone else.

Your will also will not cover any property that has a designated beneficiary. For example, if you have life insurance, and the proceeds go to someone you named in the life insurance policy, your will does not affect how the life insurance proceeds will be paid.

Please see the Creating a Will Self-Help Kit for more information.

Do I have to leave part of my estate to my children or spouse?

Although you can leave your estate to anyone you choose, there are laws that can affect the distribution of your property after death.

The Dependants' Relief Act allows dependant spouses and children to make a claim if they have not been adequately provided for under your will. A spouse can also make an application under The Family Property Act for the division of family property before your estate is dealt with. These Acts apply whether you have a will or not.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

What is a dependant and are they entitled to a part of my estate?

A dependant may include:

  • your spouse by marriage;
  • someone you lived with, as spouses, for at least two years;
  • someone you lived with for less than two years but have a child with;
  • a child under the age of 18;
  • a child over the age of 18 who is mentally or physically unable to earn a living;
  • a child over the age of 18 who because of need or other circumstances ought to receive a greater share of your estate.

A dependant spouse or child can apply for a share of your estate for their support. The court can review your will and, if necessary, redistribute your estate to properly provide for your dependants.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

Can I leave property to my minor children?

Yes, you may leave property to a minor child, but it must be held in trust until they reach the age of 18 or other age set out in your will. If you have children under the age of 18 at the time of your death your executor will generally manage anything left to them under your will. You can also name someone other than the executor to do this. This responsibility will continue until the child reaches the age of 18, or older if you have specified an older age in your will.

Planning for estates that will include minors as beneficiaries is complicated. Ensuring that a trust established for the benefit of your children is properly drafted is critical. A lawyer can help you understand the many considerations there are and ensure that your intentions are carried out.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

How do I choose a legal decision-maker (custodian) to look after my minor children?

If you have children under the age of 18, you will want to think about who you would like to care for them in the event of your death, where there is either no surviving parent or there is an agreement or court order authorizing you to appoint a legal decision-maker (custodian). Such an appointment can be made under your will.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

How do I ensure that my wishes under my will are followed after my death?

A will should be kept in a safe place where your executor can easily locate it after your death. Care should be taken to protect it from being accidentally destroyed or lost. You may also wish to advise your executor where your will is kept.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

What tax consideration should I be aware of?

When creating a will, it is important to note that certain property may be rolled over to a spouse. As well, upon the death of an individual, all property is considered sold, which triggers capital gains.

For further information on tax considerations and how they may impact your will, please consult a lawyer or accountant.

Please also see the Public Legal Education Association of Saskatchewan (PLEA) website for more information on You can use your will to maximize tax benefits.

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