Reasons Why Millennials Should Make Wills
Millennials are older than some realize—in fact, in a year from now, the oldest Millennials will be turning forty years-old.[i] As such, many Millennials are starting to think about estate planning, though 90% of them do not yet have wills.[ii] It is easy for a married millennial with children to realize why they should make a will,[iii] but it is more difficult for an unmarried, childless millennial to see why they should bother. Regardless of their life circumstances, there are many good reasons why most Millennials should make wills.
The most common and simple reason for Millennials to make wills is to decide who will get their property when they pass away. Though Millennials have substantially less wealth than previous generations,[iv] many still have some property to divide up. Many cannot afford houses because of the inflated real estate market, but most have other forms of property, such as art, jewelry, bank accounts, and investments.
Subject to legal obligations, a Millennial can divide up that property as they wish inside a will. For instance, they can give their property to friends, nieces, nephews, charities, or a common-law spouse. Without a will, this property (unless the property is jointly owned or has a designated beneficiary) will be distributed according to the rules of intestacy, [v] which were not drafted for unmarried, childless Millennials. If a common law spouse dies intestate (without a will), the surviving spouse will neither inherit any part of the estate [vi] nor be entitled to an equalization of family property.[vii] To get anything from the Estate, the surviving common law spouse must make a dependant support claim, [viii] which is both costly and time-consuming. With a will, a Millennial decides who inherits their property while disinheriting individuals who would otherwise stand to inherit.
Custody of Children
Many Millennials have young children who require someone to have custody and guardianship. These young parents[ix] may appoint by will one or more persons to have custody of the child[x] and to be guardians of that child’s property.[xi]
The appointments, however, are not guaranteed. The person appointed to have custody or guardianship must consent to the appointment, and the appointment lasts for only ninety days after the will takes effect (at the death of the testator). Within those ninety days, the person appointed to have custody of the child must apply to a court for permanent custody. The person will be given permanent custody if the court considers it to be in their best interests of the child. That said, the court will normally follow the appointment in the will on the basis the testator was in the best position to determine the child’s best interests.
Another reason a Millennial may wish to make a will is to create testamentary trusts for the benefit of children, dependents, or family members with disabilities who are unable to make financial decisions on their own. A testamentary trust arises upon the death of the testator, and names a trustee, whose duty is to carry out the provisions of the trust for the beneficiaries, who will receive the benefits of the trust.
A trust can be created specifically for an individual or for a group of individuals. Millennials with multiple children may wish to create a single pooled trust for all their children, which expires when one of those children reaches a certain age. With a pooled trust, the trustee can divide trust funds as they are needed by the children. If one child has a greater need for financial support, the trustee can have the discretion to disproportionally use trust funds for that child. If there is a child with a disability, the will should create a Henson Trust, an absolute discretionary trust that does not vest with the beneficiary and thus cannot be used to deny them means-tested disability benefits.
Millennials were the first generation to grow up with the Internet, and most have many “digital assets,” which include files stored on digital devices, email accounts, web hosting accounts, and social network accounts, such as those on Facebook and Instagram.[xii] Although many of these digital assets may not have much monetary value, they may have significant sentimental value. For instance, some Millennials may want their Instagram accounts to remain active after they die, and others might want the accounts deleted. A person cannot access a deceased’s Instagram account, or other digital assets, without authorization. A will can provide this authorization to your executors, while providing additional instructions. In addition to a will, a testator should also keep a secure list of usernames and passwords so that the executor can easily access the accounts.
Another good reason for a Millennial to do a will is to take care of a pet. According to the law, a pet is considered property, and thus cannot directly receive gifts or cash legacies through a will. A pet-owner can, however, use a will to name a caretaker (or successive caretakers) for that pet and either provide a cash legacy to the caretaker or to set up a trust for them to ensure the pet is supported.
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[i]According to Pew Research Center, a millennial is someone born from 1981 to 1996. See: Michael Dimock, Defining generations: Where Millennials end and Generation Z begins ( January 17, 2019), online .Pew Research Center.
[ii] Elana Shepert, Survey finds that a whopping 90% of Canadian millennials do not have a will (April 2019), online: Vancouver is Awesome.
[iii] A will is often referred to more formally as a last will and testament.
[iv] Nicole Lyn Pesce, This depressing chart shows the jaw-dropping wealth gap between millennials and boomers (December 28, 2019), online: MarketWatch.
[vi] Where a person dies intestate in respect of property and is survived by a spouse and not survived by issue, the spouse is entitled to the property absolutely. See: Succession Law Reform Act, R.S.O. 1990, c. S.26. s 44.
[vii] In Ontario, the right to an equalization payment only applies to married spouses.
[ix] This assumes the parents are entitled to custody and/or guardianship.
[xii] “Digital assets” also include emails received, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, domain registrations, DNS service accounts, online stores, and affiliate program.