Wills and estate planning is sadly one of the biggest legal and conversational taboo out there. Many of us get anxious just from the mere thought of having a Will drafted, as it brings us closer to facing death even if only in our minds. On the other hand, we see many others who are happily oblivious and refuse to discuss or even think about the topic of death altogether. It is understandable that its a scary and sensitive topic to all of us but as death is inevitable, so is the financial and emotional toll it takes on a families. Therefore, it is very important to rest assured knowing that you and your family are prepared for the worse and that your health, children and property will be taken care of as you wish.
Estate planning should be a financial priority at almost any stage of life when you have property and dependants. Deep inside we probably all agree that planning for what happens to your assets is of monumental importance. But why exactly should we care? Well, because you want to ensure that you have a document that will allow for a simple, organized and tax-efficient transfer of your assets to your family and loved ones as well as the charities you want to support. If you or your partner dies without a will, the province you live in will take care of your estate using a standard formula. Without a will you are giving up control on how things are divided and who will be in charge of the process.
So what are the things you should think about when drafting a Will?
First, we need to make sure we choose an honest and reliable executor/estate trustee. The role of the estate trustee requires sound judgment, patience, tact and empathy. The estate trustee’s responsibility should not be taken lightly. When you are making a will, you should choose an estate trustee carefully, considering the candidate’s suitability for this demanding position. This person will ultimately gather up the estate, pay your debts and divide what remains of your estate among the “beneficiaries”. An alternate executor should also be named in the event that the first chosen executor becomes incapacitated, die or refuses to act.
Secondly, if you have minor children, appoint a guardian. This will avoid confusion in your extended family as to who should care for your child if both you and the other parent die before the child reaches the age of maturity. It’s especially important to name a guardian if you’re a single parent – otherwise the court might appoint someone you would not want. This appointment is legally valid for 90 days. After that period, an application must be made to have the courts appoint a legal guardian. The wishes expressed in your Will are generally given substantial weight in this process meaning that the people you appoint through your Will are more often than not appointed the legal guardians of your minor children. Without a Will, the issue of guardianship of minors can become very complicated and cause great conflict within your surviving family.
Another important distinction should be made if you are living common-law. The law in Ontario does not provide for the common-law spouse. If you are living common-law and die without a will, the property will be distributed as though the common-law spouse were a complete stranger.
Do I have to get a lawyer to do my own will?
A Will is a roadmap for estate planning and is a document that might require updating when your circumstances change throughout your life. As your personal and business assets grow, so does the importance of preserving and protecting them. In Canada, you do not have to hire a lawyer to draft your will, you can do it yourself, however, remember that estate planning is very serious business and even one wrong word or missing signature can change the entire intent of a will or trust. Not only that a good lawyer will make sure that all of the documents you sign are legally binding, but they can also help you sort out complex family or financial situations such as: second (or later) marriages, ownership of several businesses, real estate owned in more than one province or country, care for a disabled family member, problem children, no children, charity, recently divorced, and so forth.
Remember, a will is a document that is only a part of your overall estate planning. Although a will may seem simple, it is really a complex legal document. To make an effective will you will require deep understanding of property ownership and the law about wills. Many rules are to be followed, no matter how simple the will; otherwise the will may not be valid. The words chosen must be clear and unambiguous. An experienced lawyer will know about the rules that apply to wills and can help with estate planning so as to save money for your beneficiaries. And you’ll have the peace of mind of knowing that your will is properly drafted and valid, and that your estate will be paid out as you wish.
A will done by a lawyer does not have to cost much and a well written will most likely will pay for itself. It is wise to discuss the fees with your lawyer when you call to arrange for a meeting. To save time and money you should have some information ready when you meet with your lawyer. A list of immediate family members, their contact info, full information about children and dependents, full info or organizations you wish to donate to, a list of all assets and personal items of value, real estate ownership documents, details or pensions, RRSP, information about businesses you own and/or operate, any separation agreement, custody or guardianship information.
It is important to note that if you marry, your will is automatically revoked unless the will clearly states that it was written taking your new marriage under account. If you divorce, the portion of your will that involved your ex spouse may no longer be valid.
You should keep your will in a safe place. Your original copy is better stored in a permanent, safe and fireproof location. Your original will is what your executor will need to have, not a copy. It is recommended you keep all other important documents in the same place as well, so your executor has what they need when times comes. A good lawyer will allow you to keep your will at their office and give you business cards to distribute among your family members in case of need. It is especially important to have fast access to your original copy of the will if there is a POA (power of attorney) as a part of it as when it is needed, every day counts.
The Canadian Association of Gift Planners (www.cagp-acpdp.org) has a public awareness program whose goal is to promote the importance of preparing a will. I, unfortunately, became aware of the legal difficulties after ones passing through losing my dear father some years ago. I now make it my personal and professional mission to make sure that we all have proper planning for all of those life situations when our families and we need it most.
Ella Korotkin is a law clerk at Unger Law and an admin at the Toronto Mommies group. You can find our more about Ella on through her Facebook Page.