Estate planning is important
It enables us to prepare wise plans for the wealth God has entrusted to us, which includes:
- how we will manage, own and use it during our lifetime; and
- how we will pass it on while we are alive or upon our death
Estate planning is urgent
Life is uncertain
“As for man, his days are like grass, he flourishes like a flower of the field; the wind blows over it and it is gone and its place remembers it no more.”—Psalm 103:15-16
Responsibility requires timely action
“Now it is required that those who have been given a trust must prove faithful.”—1 Corinthians 4:2
Future family needs must not be neglected.
“If anyone does not provide for his relatives, and especially for his immediate family, he has denied the faith and is worse than an unbeliever.”—1 Timothy 5:8
We can participate in God’s work on earth long after we are gone.
“Now He who supplies seed to the sower and bread for food will also supply and increase your store of seed and will enlarge the harvest of your righteousness.”—2 Corinthians 9:10
- Provide adequate funds to meet the needs of a surviving spouse to:
- Live and retire in an appropriate fashion, and
- Meet costs associated with emergencies, illness or disability.
- Provide adequate funds to meet the needs of children and others for whom we may be responsible.
- Provide an orderly transfer of assets to persons, causes, and ministries that we wish to benefit.
- Provide competent asset management for beneficiaries who are unable or unwilling to handle their financial or business affairs.
- Avoid unnecessary and excessive taxation and reduce estate expenses.
- Continue our lifetime practice of investing in the financial support of church and conference ministries and worthy causes.
- Provide adequate funds to meet the needs of a surviving spouse to:
1. The building blocks of an estate plan
A will is a written document signed according to legal rules, intended to take effect after death, in which the maker disposes of property.
For a will to be binding:
- The maker must be of sound mind.
- The provisions must not be the result of undue influence by another.
- The will must be in writing, dated, signed by the maker and witnessed by two witnesses. The maker and the witnesses must be present at the same time and must observe each other sign.
- Some jurisdictions permit a holograph will. It must be entirely in the personal handwriting of the maker, dated, and signed. It does not require witnesses. Due to the risk of serious legal problems for the estate, it should only be used as a last resort.
Changing a will
Changing a will is done through an amending document called a codicil. It must be prepared and signed with the same formality as is required for a will.
“By wisdom a house is built, and by understanding it is established.”—Proverbs 24:3
Never strike out provisions and write in new ones in a previously signed will. Such changes may not be effective even if initialed by you and your witnesses.
Everyone who is of legal age should have a will.
People who have very little should have wills to keep estate costs as low as possible. Without a will, the cost of handling such an estate may be more than its entire value.
Even if one owns no assets at death, there may still be assets entering one’s estate after death as a result of inheritance or as compensation due to an accidental death.
The benefits from having a will include:
- Having persons of our choice both manage and distribute the estate. Their right to act begins the moment after our death.
- Having persons of our choice serve as guardians for our under age children.
- Distributing our assets to beneficiaries of our choice rather than via a government formula. We can take into account special circumstances and unique relationships. This permits us to make gifts to the church and its related ministries.
- Making possible specially designed trust funds for the benefit of children, with instructions for their use and distribution.
- Reducing taxes, estate costs and settlement time.
The disadvantages of death without a will include:
- Loss of control
- Provincial law determines who can apply to be appointed to handle our estate affairs.
- All assets are handled and divided according to provincial laws and formulas.
- The guardianship of children is left to the decision of a judge. If no suitable person comes forward to ask for guardianship, the province will place the children in foster care.
- The use of estate money for the benefit of children under legal age is restricted by government regulations, but when a child reaches legal age, any money remaining is given to the child without restriction.
- The opportunity to make a charitable gift is lost.
- Hardship or loss to family members due to frozen estate assets.
- Only an administrator appointed by a judge can legally deal with assets. The appointing process may take months.
- The division of assets and finalizing of estate affairs generally takes much longer than if there had been a will.
- Estate expenses are generally much greater than if there had been a will because of the extra work involved.
- Provides cash without a forced sale of assets to meet short-term family needs and to pay taxes, debts, funeral and estate expenses.
- Provides for the future needs of a spouse and children when other assets are insufficient to do so.
- Provides extra cash so that farm or business assets can be passed to certain children without treating others unfairly.
- If a beneficiary is named in the policy, payment goes to that person regardless of the existence or terms of a will. For probate purposes, such insurance money is not considered to be part of the estate.
- The registered ownership of assets takes precedence over what a will may state.
- Some assets may be registered in the names of two or more owners in joint tenancy (in the case of land) or with right of survivorship.
- Upon death, the deceased owner’s share automatically becomes the property of the other joint owner(s) regardless of what a will may state.
- Property passes over without a will or the need for probate.
- This is often used between spouses to pass the family home, bank accounts, and bank investments to each other.
- This approach should be used with great care because it results in immediate loss of sole ownership and sole control of the asset. It can be particularly dangerous if used with under-age children.
- Assets may be registered by owners as tenants in common (in the case of land), or simply without any reference to rights of survivorship. Then the deceased owner’s share then becomes part of his or her estate and passes under the will or the laws governing intestacy.
What is probate?
A proper will makes a hard time a little easier.
Probate is the process by which the executors deposit the original will with the probate court, prove it to be your last will, and receive a court order confirming it to be such. The court order also officially confirms and appoints them to their duties as executors.
Why do we need a probate process?
- to establish for everyone that the will presented is in fact your most recent will, properly prepared and signed
- to provide a way to determine the meaning and effect of any ambiguous provisions in the will and to provide direction as to how these are to be carried out
- to allow people who have reason to oppose the will to have an opportunity to have their arguments considered before the assets are sold or distributed (the original will and the documents filed in court in the probate process may be seen by anyone wishing to do so)
- to give your creditors an opportunity to receive payment
Do all assets need to go through probate before they can be dealt with?
- No. Assets not requiring probate include:
- life insurance and retirement funds where a beneficiary has been named
- land held in joint tenancy
- investments and bank accounts held jointly with right of survivorship
- Assets that generally require probate include:
- land not held in joint tenancy
- most investments and bank accounts
Who is involved with probate?
The executors and guardians named in the will, the estate lawyer, the probate judge, and the beneficiaries are all involved with probate.
How long does it take to obtain probate?
It generally takes from one month up to a year, depending on the complexity of the estate.
3. Main duties of executors
- Locate and review will.
- Contact family members and beneficiaries; hold preliminary conference with them.
- Make funeral arrangements.
- Meet with lawyer to determine if probate is necessary; if it is, begin the process.
- Locate and value estate assets and debts.
- Protect assets until distributed or sold:
- Check insurance on all property.
- Collect and safeguard valuables.
- Protect business interests.
- Keep financial records of all estate activities.
- Consult with accountant:
- File tax returns for the deceased and the estate as required.
- Get tax clearance certificates from Revenue Canada before distribution to avoid personal liability for taxes.
- Ensure that GST is paid where applicable.
- Invest and deal with trust funds as required by the will.
- Make wise decisions as to the use of money for the needs of under-age children.
- Pay debts and taxes payable by estate.
- Provide beneficiaries with a full report of estate financial activities.
- Distribute assets as provided in will and as required by law; obtain a release from each beneficiary.
4. Things to consider in making a will
You may wish to use your will as an expression of your Christian faith by using a special introduction akin to the following:
“Realizing the uncertainty of this life, and with full confidence and trust in my Lord and Saviour, Jesus Christ, in his death for my sins on the cross and in his shed blood as an atonement for my soul, and knowing that by faith in his sacrifice on the cross for me I have eternal life, I make this my will.”
You may also wish to leave a special remembrance using words akin to the following:
“I instruct my trustee to purchase a Bible for each of my surviving children and grandchildren with the inscription ‘In loving memory of _____’.”
Another possibility is to leave a special affirmation and blessing for your children in a letter or in an audio or video tape.
- Choose reliable people with sound judgment and skill.
- In most cases, your surviving spouse is the best first choice.
- In the event that both you and your spouse will have passed away, appoint two other executors to act together or alternatively. This will protect against a vacancy should one be unable to act.
- If possible, choose people who live in the same province as you do in order to decrease cost and inconvenience.
- Every parentless child under legal age needs a will-appointed guardian to avoid the risk of being placed in a foster home.
- Guardians are responsible to:
- Control the child’s care and upbringing. Usually the child lives in their home.
- Make decisions and perform acts that, because of age, are beyond the child’s legal capacity (these include educational and medical decisions).
- Control any assets owned by the child.
- In choosing your guardians consider their:
- Spiritual maturity and values
- Place of residence (is that where you want your child to grow up? Be careful about choosing guardians not living in Canada—their country of residence may disallow entry to your child)
- Compatibility with your child
- Lifestyle and example
- Money-management skills
- Either couples or individuals can be named as guardians. It is wise to also name alternatives to take over if your first choice is unable to act.
Distribution to family
- If you predecease a spouse:
- Your first option may be to pass the entire estate to your surviving spouse. This can generally be done tax-free. This approach frees the assets to be used as your spouse considers wise in the raising of the children.
- Provision for children:
- Trust funds administered by your executor can provide resources for their care and upbringing until adulthood. You may choose either a pooled trust or a separate trust approach. You can set the age at which children receive the remainder without restriction.
- Trust funds may be used to provide for the needs of adult children who are unable to handle their own affairs.
- Division among adult children can include the transfer of business or farming assets in a way that will maintain overall fairness.
- Special circumstances can be taken into account
- A deceased child’s share may be distributed to the child’s surviving spouse, to grandchildren, or both.
- If there are no children:
- You may wish to give your estate to parents, siblings or friends. You may have extended family members whom you would like to benefit.
- If you have no dependants, you have an exceptional opportunity to make a significant gift to a worthy ministry or cause of your choice.
Your will is a good way to further support the ministries in which you have been involved in your lifetime or that you consider to be particularly important.
Oftentimes primary family needs have been largely looked after during your lifetime, making a substantial gift possible upon death without causing family hardship.
An estate ministry gift is a benefit to the recipient and an expression of your values and Christian commitment.
An estate ministry gift can be made in the form of:
- a specific cash amount
- a proportionate share—some leave 5%, 10%, 15%, etc. of the estate after expenses and debts
- specific properties
- a memorial endowment gift with earnings to be used for the benefit of a particular cause or ministry
Possible beneficiaries include:
- your local church
- your MB provincial conference programs such as: educational institutions (high schools, Bible institutes, camps, etc.) senior care homes, etc.
- Canadian conference, programs including:
- Ministries carried out jointly with other Mennonite conferences:
Gifts other than by will
You can make charitable gifts as of the time of your death in ways other than through a will:
- Life insurance policies
- can be made payable to a charity
- This downloadable resource includes helpful worksheets on listing general information for your executor and creating an estate inventory.
- Loss of control