With better health care and more active, healthier lifestyles, people are living longer and accumulating more assets. In fact, it is estimated over a trillion dollars will be passed down to the baby boom generation from their parents.
The baby boom generation is also aging, and many are doing estate planning. Part of good estate planning includes the preparation of legal documents such as Wills, Enduring Power or Attorneys, and Advanced Health Care Directives.
As people plan their future and prepare these documents, we hear many questions frequently.
Q. Why do I need a Will?
A Will allows you to give property upon your death to the people or organizations you wish. It also allows you to appoint a person or organization that will handle your estate once you pass away. A Will also allows you to appoint a guardian for your children or anyone else who may require guardianship.
If you do not have a Will, your assets will go to whoever is prescribed in the Intestate Succession Act of your province. This may or may not be what you had intended. A Will can also prevent a dispute as to who will handle your estate, and make it easier to get your estate proceeds. For example, having a person appointed as the executor/trix will eliminate the need to get the consents of all of your next of kin for one person to look after the estate
Q. Why do I need a lawyer to do my Will?
Lawyers are trained in drafting Wills, and it is essential your Will be drafted without ambiguity. A lawyer can suggest certain clauses you were not even thinking of, or properly word a clause you were thinking of. There are some things you cannot do with your property, and a lawyer will help make sure the clauses in your Will would be upheld by the courts.
Also, a lawyer can give advice generally about estate planning. It is important your assets be held in a certain way to avoid costly inheritance taxes and probate fees. After consulting with a lawyer, you may find there are additional things you need to do to protect the integrity of your assets such as get a deed to your land in yours and someone else’s name, or consider a marriage contract.
Finally, and perhaps most importantly, it must be remembered that your Will takes effect upon your death. It will probably not be opened or read until you are buried or cremated. If there is a dispute about the validity of your Will, your lawyer may become crucial in establishing the validity of same.
Wills tend to be challenged for the following reasons: (a) clauses in the Will are ambiguous or certain bequests are missing such as a residual clause (b) the Will is not properly witnessed as required by the Wills Act, (c) it is alleged the testator did not sign the Will voluntarily and was coerced by someone, for example, a family member, and (d) the testator was not mentally competent when he/she made the Will.
When a Will is challenged, happy families can soon turn into feuding ones. Your lawyer will have interviewed you and probably taken notes on the above points to ensure they are satisfied. Your lawyer may even require a doctor’s certification of competency if he or she has doubts. The lawyer may have to testify in court, if necessary, to explain what your intentions were or to confirm you were not coerced or incompetent.
Q. Who can witness my Will?
A Will must be witnessed by two people, both of whom must be present at the time of your signing. A beneficiary of the Will or the spouse of a beneficiary cannot be a witness.
Q. I want to keep my property in my family forever through my Will. Can I do that?
There is a maxim, you can’t rule from the grave , meaning that if you leave certain assets to certain individuals, you cannot unduly restrict their use of same. That said, you can set up a testamentary trust which will allow you to control the asset for a period of up to twenty-one years.
Q. I made a Will ten years ago, but have since remarried. Is my Will valid?
If you are not married when you make a Will and you subsequently marry, the marriage operates to revoke the Will and you have to make a new Will.
Q. I want to leave funeral instructions in my Will such as what type of casket I want and what hymns to sing. Is that permitted?
Yes you can include funeral instructions in your Will, however, often times Wills are not opened or read until people are buried or cremated and the grieving period has passed. If you want to make sure that your instructions are followed, you should make sure to tell your executor that your funeral instructions are in your Will.
Q. What does an executor do?
Being an executor is a big responsibility. The executor should first get the Will probated to get the courts seal of approval that the Will is valid and he/she has the authority to look after the estate. He/she has to make sure all debts and taxes owing by the estate are paid. The executor has to preserve and maximize the assets of the estate until such time as they can be transferred to the beneficiaries. He/she has to dispose of all the assets of the estate and give an accounting to the beneficiaries of the revenues and expenses of the estate.
These are only some of the duties. It is important to discuss your desire to appoint someone as an executor with that person first to see if they want to accept the responsibility. A lawyer can help the executor carry out most of his/her duties.