Q: I divorced my wife of 25 years 10 years ago. We have two children in their 20s now. I remarried and now have two toddlers with my second wife. I need to update my will and was wondering how to be fair and equitable in my will to all four of my children if I pass away?
A: Alfred, you ask about updating your will, but please be careful. Here’s why. In some provinces, your second marriage has already revoked any existing will. You may not have a will to update but may need a completely new will.
Not having a will can be disastrous for your loved ones. The government has rules that divide up your estate. These rules protect those with legal rights to share in your estate. This divides your estate and ignores those who have moral claims.
So you should seek legal advice for a new estate plan and will. Why do you also need an estate plan? Because a will may not be sufficient to accomplish your wishes. An estate plan can consider extra items not covered by wills. Such items can include simple things like tax planning, tax-free savings accounts and life insurance.
You need advice, not a do-it-yourself will. Look for an estate planning lawyer with experience with second marriages.
Remember, legal obligations trump moral obligations. You certainly need a will for your two toddlers and second wife. And you want to share something with children from your first marriage. So how can you do that? First, realize that society requires you to support your dependents so your first duty is to meet your legal obligation to support them. After that, you can address your moral obligations, if possible. Your children from your first marriage are in their 20s and you divorced 10 years ago. Are you supporting these adults? If they are independent and self-sufficient, they may have no legal claims to your estate. In other words, they have no right to support from you or your estate. They only have moral claims. You may honour these provided you have satisfied all your legal obligations.
Your legal duty is to support your two toddlers and your second wife. Your wife is also entitled to a share of your family property. After you’ve taken care of these legal obligations, you may include your other adult children in your estate plan.
If you are in good health, life insurance may help. You can purchase a policy for the 20-year-olds. This can ensure you meet any moral obligations. You could make a list of personal items to share with your adult children. You could also consider setting up a trust fund to provide for your dependents. Consult with a lawyer to see if trusts are suitable for your specific situation.
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Ed Olkovich is a Toronto lawyer and certified specialist in Estate and Trusts Law
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