Where there's no will there's no way

My friends Jason and Nadia are a charming couple. They own a house with a mortgage, they have a car and investments. They have two young daughters, ages five years and three months. They are, in short, a family not unlike many others in Quebec. One afternoon earlier this fall, my five-year-old son Jonah was passing the time by doing this thing he likes to do that is best described as bothering me so deeply into oblivion that my soul fades into the shadow realm and I begin to genuinely wonder, on a metaphysical level, if I ever really wanted children to begin with. (I suspect there are some parents of kids in this age group who can relate.) I decided to address this behaviour by taking the boy to the park so he can, as my mother-in-law says, get his wiggles out.

I invited Jason, whose eldest daughter Lyla is friends with Jonah. While the kids were doing whatever it is that kids do in a park, Jason and I were talking dad stuff. You know what I mean: we were comparing auto insurance policies, complaining about the flimsiness of the gyprock in our houses, and debating whether a front-load washing machine was worth the expense. (They are definitely more energy and water efficient, but golly are they slow!) At some point, we started talking about our wills. Jason and Nadia, I will have you know, do not have wills. Who needs the expense?? When one of them dies, the other will just take all the property and move on with their life. No will, no problem, easy peazy, right?? Hold on . . . I just got an alert from master control, and would you look at that: this is in fact not right! 

As a professional with some experience in estate planning, it can be easy for me to lose sight of the fact that there are some things that I take utterly for granted of which others are completely unaware. Believe me when I say that upon Jason confiding in me that he had no will and, at that time, no plans to acquire one, I was horrified. Aghast! (Agog??) It took all the self-discipline I could muster to stop myself from grabbing Jason by the shoulders and describing to him in head-shaking detail the risks this poses to him and his family. Once I had a moment or two to compose myself, I realized that what may be obvious to me, who works in this area of law every day, may not be obvious to others. Thus began the calm and careful work to convince Jason and Nadia why they need to get their wills done.

Which is an excellent place to start. (I am pointedly not looking at anyone indicating that the supposed “start” is coming in paragraph three of this text.) Why does one need a will? The answer, to put it in terms that everyone can appreciate, is WE’RE ALL GONNA DIE!!! Alarmist? Kind of! False? Unless someone has figured out the whole immortality thing, not to my knowledge. At some point, every single one of us is going to divest from this mortal coil, and the stuff we leave behind will need to be dealt with. This is an important element to understand—aside from one key exception (more on that in a future post), a will deals with a person’s stuff. Your things, your possessions, your money. That’s all it is, really. It’s an opportunity for a person, after they’re gone, to dictate to those of us remaining in the land of the living what will happen to all of their worldly assets.

Okay, I can virtually hear the questions materializing in your prefrontal cortexes. What is going to happen if I don’t have a will, Zach??? Honestly, it’s a good question. Whether you have a will or not, something has to happen to your stuff. Conveniently, the Civil Code of Quebec addresses this for you. Quite extensively, actually. There is an entire chapter in the Code which sets out the “order of devolution” for a person who has died intestate (which is Latin for “without a will,” because apparently we’re still speaking in Latin sometimes). To briefly paraphrase this chapter, your stuff will go to the members of your family, but maybe not in the way you might expect or want.

Consider Jason and Nadia again. They are a married couple with two kids. If one of them should tragically pass in, say, a water balloon fight gone horrifyingly wrong, the surviving spouse would get everything. Right? Wrong! In fact, the spouse would only get one-third of the assets. The remaining two-thirds would be split between their children, who are—and I cannot stress this enough—literal babies. Imagine co-owning your house with your toddlers. Not even co-owning it, really, because they own more than you! They’re basically your landlords. And because they are minors, Quebec law imposes strict rules about what their legal guardian (in other words, the surviving parent) can do with their assets.

It is very restrictive.

Nadia wants to sell the house? She’s going to need a court order permitting her to do so, and it’s not a guarantee she’ll get it. (And even once the house is sold, two-thirds of the proceeds go to the children!)  Imagine Nadia, going from a two-income family with her partner to becoming a single-parent who has just lost access to two-thirds of the family assets. I haven’t even begun to mention the logistical complications of picking a liquidator (the person who administers the estate) when there is no will. Typically, when there is no will, it’s the heirs who select the liquidator. When two out of three heirs are minors, however, their legal guardian likely needs a court order to select a liquidator on their behalf. This could delay the liquidation of the estate by weeks, and meanwhile all of Jason’s assets are frozen and unavailable to Nadia, who again, has two kids to take care of. It isn’t hyperbole to say that this is a nightmare. A dreadfully irreversible, manifestly avoidable nightmare. All because Jason didn’t have a will.

Ok, now that I’ve established, hopefully, please, I beg of you, that you really do need a will, you may be wondering, “Zach, how do I act on this information?” That’s a great question, and I would love to tell you! Sadly, my editor has impressed upon me the virtue of a “word limit” or whatever, so you’re going to have to come back for part two of this series for the answer. I, for one, am looking forward to it! Until then, I’ll be performing an environmental impact assessment on front-load washing machines.