It is a very common misconception that people should write a Will just before they die. Many people feel that you should think about your Will at the time you start to contemplate death. Don't be surprised when you tell people that you have written your Last Will and Testament, that they respond with concern; "are you okay?" "why do you think you're going to die?". The reality of course is that every adult should have a Will as part of their financial plan. None of us know when our Will is going to come into effect, and hopefully it will be decades into the future. But a Last Will and Testament isn't written just once in a lifetime, it should be written when we are young, and updated throughout our lives when circumstances change.
In fact, one of the most important life stages that demands a Will, is when you have had children.
Two of the most important roles of a Last Will and Testament is naming a Tutor for your children (known as a personal guardian throughout the rest of Canada), and creating a Trust for your children.
Creating a Trust for minor beneficiaries
By law, you cannot leave cash or property directly to a minor. You must leave the bequest “in trust”, and a trust will be set up for the benefit of the minor. You can also set up this type of property management for any other legatee who is still young and may not be mature enough to accept a large bequest.
A “trust” is a legal arrangement in which you pass the ownership of property to a “trustee” who will manage that property for the benefit of another person or organization (the “legatee”). The trustee is the “legal owner” of the property, but the legatee is regarded as the “beneficial owner” of the property.
The key concept of a trust is that the legatee cannot access any of the property, other than what is distributed by the trustee.
When including a trust as part of your Will, you are creating a “testamentary trust”, as it will only come into effect after your death. The Trust will be managed by the Liquidator of your Will (known as the Executor throughout the rest of Canada). In your Will you can specify the age at which the minor beneficiary will receive their inheritance. If you do not specify this in your Will, they will receive their inheritance when they turn 18 years of age - the Age of Majority in Quebec.
Naming a Tutor for your children (or Personal Guardian)
A Tutor or “personal guardian” will take legal responsibility for minors in the event of the death of the parents. When you appoint a Tutor in your Will, you are expressing your preference for who you would like to raise your children.
This may be an emotional decision, but it is very important to cover this possibility, even if there are currently two living parents. It is not uncommon for both parents to be lost due to a common disaster. If you are the sole custodial parent, it is absolutely vital that you state clearly who you would like to take responsibility for your children should you die.
Wills are not only for seniors and the elderly. The naming of a tutor and the setting up of trusts for minor beneficiaries are key components of a well drafted Quebec Last Will and Testament.
Quebec Will Kit
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