The
Indispensable Will
Author:
D. James Newland (National Life)
One
of the cornerstones of any estate plan is a valid, current and effective
will. Unfortunately, a recent survey found that only 51% of adult Ontarians
have a will, and that number was heavily weighted towards elderly persons
who have already lost a spouse. This means too many people are waiting far
too long before considering their will.
Most
people know intuitively that they should have a will, but they put it off
because of a lack of urgency, confusion about the process, uncertainty about
cost, and the general unpleasantness of contemplating one’s own demise.
There
are several important reasons to have a will. In general, the will provides
for the economical, accurate and orderly transfer of property on death. More
specifically, a will allows an individual to decide who will be the executor,
who will get any specific items or amounts from the estate, and who will
be the guardian for any dependants.
Without
a valid will, these decisions will be made by a judge according to the terms
of a provincial statute.
The
law libraries are filled with horror stories of estates being eaten up in
legal fees and otherwise loving families being torn apart when family members
fight over their inheritance. A valid will can avoid these problems for the
family, and help make the administration of the estate as smooth and painless
as possible under trying circumstances.
There
are several reasons why a legal professional should be involved in the preparation
of a will. First, a lawyer is objective. His or her knowledge and experience
will help avoid family quarrels and ensure what you want done will be done.
After all, a will has to be done right the first time.
Second,
a legal professional can ensure that the will is valid. There are the legal
restrictions on what you can and cannot do with your estate. For example,
a lawyer will ensure that you do not run afoul of family law or dependants’
relief legislation. A lawyer will be up to date on recent changes in the
law that may affect your estate and deal with any complexities arising from
owning property in more than one jurisdiction.
In
this regard, a lawyer will make sure the necessary formalities have been
taken care of in terms of drafting and execution. Surprisingly one of
the most common causes of invalid wills is improper execution.
Third,
competent professional advice will help minimize probate and other taxes.
Taxes, of course, are pervasive in every aspect of our lives and our deaths.
In many cases, a lawyer can assist in setting up testamentary trusts in order
to reduce taxes payable by heirs. In provinces such as Ontario, British Columbia
and Nova Scotia, probate taxes have been dramatically increased in recent
years and good will planning can help minimize these taxes as well.
But
the fact is that everyone’s situation is unique and the boilerplate
found in slim volumes at the local bookstore may not work for you. What it
comes down to is avoiding the expense and aggravation to your family if something
goes wrong, at what will inevitably be a trying time for them. So consider
it a bit of insurance and have the will professionally prepared for the peace
of mind of you and your family.
While
a professional should always be involved in drafting a will, there are a
number of things clients can do to keep costs down. Lawyers generally charge
by the hour so you want to keep those hours to a minimum.
Therefore
before meeting with a lawyer, a client should consider the following:
Executor
— who do I want to be in charge of my estate? Who do I trust to do what
I want done. The key word here is trust, not friendship. You want someone
who understands what you want done and how you would want it done and who
has the integrity and judgement to do it.
Beneficiaries — that is, who do I want to receive my possessions
after I die? Make a list of what you own. Obviously if you are a homeowner
that will be first on the list, but also have a list of investments, RRSPs,
business interests, as well as other property, such as a cottage, family
heirlooms and jewelry. Take along the documents for each of these if you
have them. With something like your home, the lawyer will need to check as
to the type of joint ownership. With appraised jewelry, for example, the
appraiser’s description can assist in the description used in the will.
Guardians — who do I want to raise my children? This could be the
single most important decision you make and must be carefully considered.
It is also vital to confirm with the named guardians that they are willing
and able to take on this responsibility.
Back-ups — who do I want to be second choice for beneficiary,
trustee or guardian if the first choice is unable or unwilling to act?
A will should also be reviewed periodically, particularly if there have been
any significant changes in a person’s life, such as marriage (because
your will is revoked when you are married), divorce (because divorce revokes
anything given to the former spouse in the will), the birth of a child (because
you’ll want to deal with guardianship and support issues), the majority
of a child (because you won’t have to deal with guardianship), a major
acquisition or disposition of property, the death of a spouse or other family
member mentioned in the will, or the death (or physical and mental disability)
of the executor.
