WILLS
A boilerplate will is not for you
Preprinted will forms usually do not meet the requirements of the person writing his own will: your will needs to be unique and specific to you. With a preprinted will, part of the will form is typed and part is left available to be completed by typing or handwriting, inviting serious questions about the legal authenticity of the will. People also tend to cross out, or delete words on these forms, adding to the potential legal issues.
In summary, a preprinted will form puts a will in jeopardy of being contested.
I want you to have a will.
The 2002 Ipsos-Reid / RBC Investments Wealth Poll revealed that 70% of Canadians with more than $100,000.00 to invest do not have a written plan for the financial management of their estate upon death. Without a properly drafted will and related documentation, the cost to your estate and your heirs could be considerable.
Do you need a world wide will?
If you own property in legal jurisdiction other than where you reside, you shouthat his/her survivor will honor A mutual will is one in which two persons join together, each leaving that persons property and estate to the other person, and eventually to an agreed beneficiary.
In order to ensure that the surviving party honors the agreement contemplated in the mutual will, precision and certainty of the agreement between the parties is mandatory. It is important to both persons disposing of their property by mutual wills, that the one who predeceases the other shall die with the legal assurance the agreement.
Consider preparing your will according to internationally accepted requirements. The Province of Ontario has approved an international will format that has been recognized in many jurisdictions.
What is wrong/right with mutual wills?
that his/her survivor will honor A mutual will is one in which two persons join together, each leaving that persons property and estate to the other person, and eventually to an agreed beneficiary.
In order to ensure that the surviving party honors the agreement contemplated in the mutual will, precision and certainty of the agreement between the parties is mandatory. It is important to both persons disposing of their property by mutual wills, that the one who predeceases the other shall die with the legal assurance the agreement.
Is your executor the right person for you?
Careful prior thought must accompany your decision as to who is to be your executor. Ideally, your choice is a relative in good health with the expectation that he/she will outlive you. He/she should be stable, some business sense, and acceptable to other family members benefiting from your estate, and not the type of person that would create confusion or conflict. It is also very helpful that he lives in the same region as you.
Why have a will?
A properly drafted will allows you to take comfort in the knowledge that upon your demise, your property and assets will be distributed according to your wishes.
Your last will and testament will become the principal authority in determining exactly who will be in charge of distributing your assets, and how they will be distributed. It allows you to protect your loved ones, prevent legal ambiguities surrounding your estate, and minimize the consequences of any future conflict.
What a will does for you is of no legal consequence during your lifetime. On your demise, however, your will allows you to control what you have accumulated in your lifetime, by giving you a legal instrument to:
- Appoint an executor to take charge of your affairs
- Nominate a guardian of your children
- Distribute your assets according to your wishes
- Provide protection for persons requiring trusts
Where should my will be kept?
Once you have signed your will, you have the option of leaving your will for safekeeping with your lawyer, or some party mutually agreed upon. You always have the right to keep the original in your possession
What to do if the will of a decedent is not located?
The following methods may assist you in locating a lost will:
- Review the personal papers of the deceased carefully. There may be a handwritten note ( holograph will?) that may qualify as the will. It is important as well to determine if the deceased left more than one Will
- A search may turn up name of lawyers doing business with the deceased, and hopefully have prepared a will for the deceased.
- Check with the deceased's accountant.
- An advertisement in the Ontario Reports is often done.: “Anyone having any knowledge of any Will for John Smith, please contact...”
- On rare occasions a testator may have left his will with the Local Estate Registrar
How do I prove the legal validity of a lost Will?
The person attempting to prove a lost Will must establish in the Ontario Court the following:
- There has been a Will executed by the testator.
- Provide a history of the tracing of the possession of the will until the demise, and afterwards if the Will was subsequently lost after death.
- Provide evidence to rebut the presumption that the Will was destroyed by the testator, with the intention of revoking the contents.
- Prove the contents of the lost will.
Can I change my will?
A codicil is a document that is used to change, add to, or take away from an existing will during your lifetime. The changes are made without the advantage of having to rewrite the will with the changes. Frequently, it is more practical to simply prepare a new will and include in the new will your changes.
However, if you have a mutual will in which you and another person have joined together in an agreement to leave your properties to an agreed person, you should have the collaboration of your living will partner to make any changes.
Why change my will?
There are numerous reasons that will bring about the necessity of a will change, and I will mention only a few of the legal easons that require a will change.
On marriage a will becomes invalid, requiring a person to make a new will. It is recommended that a person discuss with his/her lawyer changing his/her will when becoming a parent, moves to another province or legal jurisdiction, or if a spouse had died.
Why not leave your assets to your spouse?
If you and your spouse have managed to accumulate sufficient wealth to make income from either ones estate unnecessary in order to live comfortably upon your spouses demise, there is very limited advantage to your estate to have your assets flowing directly to each other on a spousal demise. A careful review of the consequences of your demiseis recommended with yuor financial planner and lawyer.
Almost every family residence ownership is structured in a joint tenancy format, where each spouse owns an undivided equal interest in the home. Upon death of one spouse, the surviving spouse acquires the others property interest. Joint tenancy deeds are an excellent approach for persons who have not manage to accumulate a high net worth. However, with high net worth individuals, joint tenancies automatically pas on their wealth in the family residence to the survivor spouse, who is already taxed n a high tax bracket.
I recommend to my clients that whenever possible, their bequest earn income within a testamentary trust, in which income from the trusts are taxed at lower rates. Depending the amount of trust funds available and what are you specific concerns, testamentary trusts can be set up for the education of grandchildren, assist the health needs of family members, provide regular income benefits, or assist a child with special needs.
I want my animal pet to be protected.
A will maker cannot leave any of his estate directly to a pet in Ontario, but there are other alternatives available, such as linking a charitable gift to a animal agency, or a discretionary trust, with the trustee responsible for the animal and the trust.
I want to exclude my child in my will.
Any testator excluding dependents in his will are restricted by Ontario legislation, which requires continued relief to a testators dependants.
Furthermore, although the courts have generally allowed persons to leave their estate to whomever they wish, a written explanation as to why someone has been excluded, who would normally have expected to benefit from the estate, is recommended.
The lawyer should, out of an abundance of caution, ask their client to explain the reasons behind any unusual or unexpected exclusion of a child from a will disposition.
When you die, the tax man wants to know.
To avoid Ontario probate fees [estate administration tax] the use of multiple wills has arisen. One will deals with those assets requiring probate administration such as saving deposits and investments in banks and trust companies. Another will would specifically deal with shares in a privately owned corporation that does not require probate administration to carry out the wishes of the testator.
The most common avoidance scheme is the use of joint tenancy deeds in the transfer of real estate, usually on the death of a spouse. However, this approach is not beneficial for everyone, and a careful review by an Ontario lawyer of the size of your estate and that of your spouse is recommended.
Life insurance proceeds and registered retirement savings payable to a designated beneficiary are excluded from an estate, and therefore probate fees would not be mandatory in order to distribute the proceeds.
A testamentary trust included in a will is especially useful for the reduction of federal taxes where a family has young children. The tax savings are significant.
Do discuss these topics with your lawyer in order to define the best planning approach for you, and wherever possible, share your approach with your spouse and children in order to avoid unpleasant surprises for them.
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