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People who are married often feel they have no need for a will. They incorrectly believe that if they die, everything will go to their spouse. Although every situation i s different, if you own assets in your own name, that is likely not the case. For example, let’s assume the house is in your name alone, and because of our crazy real estate market, it is now worth $800,000. Let’s also assume your mortgage debt is $200,000. You therefore have $600,000 in equity (more or less). In this example, you are married and have 2 children. If you don’t have a will, your spouse is entitled to the first $350,000 of your estate. The balance is divided in 3 equal shares – one for your spouse and one for each of your two children. The result is that your spouse will likely have to sell the house in order to pay the children. Imagine how devastating that will be for the family. The house will be sold and your family will need to move, at a time when they are heartbroken and are trying to grieve you. If the children are minors, the money will have to be held in trust for them and your spouse won’t have access to it. All in all, I would call this a disaster and likely not what you would have wanted for your family. This is just one example. If you aren’t married but are living in a common law relationship, your spouse does not have any rights to your estate, unless you name him/her in a will. If you are single, do you know what will happen to your money? Do you have a friend or charity you would like to benefit from all of your hard work? I will share that when my husband Mark died, it was all I could do, to hold myself together. Fortunately, he had a will, and in the months before he died, he tried to make sure things would be easy for me. Even with all of that planning ahead of time, there were still some financial issues I had to deal with that caused me anxiety. I was so grateful that Mark had done all he could to try to minimize my stress at such a heartbreaking time. I tell my clients – making a will is one of the most loving things you can do. And I know that is true because I lived it.
This is the most common question I have been presented with over the years. Normally my first piece of advice is – breathe. Rarely does anything “legal” need to happen i mmediately. I recommend self-care. This is a massive life change that needs to be processed. Although the grief work will normally take years, the initial period following a separation is not a time to be making important decisions; there is value in taking time to get some grounding. If you do choose to see a lawyer immediately, please consider taking a friend with you, who can take some notes, as you may not remember anything that is said! The issues that need to be addressed following a separation include a Parenting Plan, if there are children, Support issues and how Property is going to be dealt with. The ways in which you can address these issues vary considerably. As you will know from my website, I believe that peaceful resolutions should be the primary method used. This would include mediation and collaborative law, which allow the two people to speak, to hear each other, and to direct the resolution. Lawyers are part of both of these processes, however the understanding is that this is your life and ultimately you know what will work best for your family. When people aren’t able to communicate directly, lawyers are able to negotiate on your behalf, with the hope that the issues can still be resolved by way of a separation agreement. It is very important for you to be clear with your lawyer about what is important to you and what you hope for your future. When there is no other option, or if your lawyer believes a Judge’s opinion would be helpful to settle an issue, a Court application can be initiated. Although most cases brought to court also settle, this option is expensive, invasive and emotionally draining. This option normally harms future parenting relationships as opposed to supporting them. Having said all of that, sometimes court is necessary and in those times, your lawyer will be able to guide you through the process. Every case is unique, as is each human being, and there are a variety of options available to you to help you move forward. It is important that you carefully consider the options at the outset. In the initial period following the separation, you may choose court as a way to lash out. If you allow yourself some time to reflect and consider, you may decide that a peaceful process is the best way for you both to craft your futures and those of your children.