Wills are simple, inexpensive ways to address many estates. Though most people are aware that they need a will, a surprising number of people don't have one. People procrastinate for many reasons, but it's important to know that writing a will doesn't have to be complicated or expensive. And once it's done, you can rest a little easier, knowing that your wishes will be followed after your death.
|What is a will?|
|A Will is a document that is created to help make your loved ones decision at the time of death. The Will contains important direction as to your wishes for dispersing the estate amongst your loved ones.|
Your Will can also help to name someone to be left in charge of your children if something was to happen to you before they become adults. This very important when there are infants or young children involved in the family.
The Will also simplifies the legal process for the lawyer which will result in minimizing the legal costs that your family will encounter and your Will will help guide your family through all aspects of the estate settling process.
|What if I don't have a will?|
|If you die without a Will, you have died in testate. Your property must go through the probate process in order to have the legal title to the property transferred to your heirs at law. Applicable statutes define your heirs at law and the law controls the distribution of your personal property. |
The rules for determining who gets property distributed from an in testate estate have many variations. Subtle differences between the rules can have a material effect on who inherits when there is no Will.
To explain this very simply, having no will can make an otherwise simple estate very complicated, can cause the estate to be tied up in legal proceedings for an extended period of time and may cause hard feelings among family members each legitimately feel they best know what your wishes would have been.
The amount of time and money involved in making a will is a very small investment compared to the costs (financial and personal) of not having one.
|Making your Will|
|Making a will that will accomplish what you want it to isn't nearly as complicated as many people fear. There are just a few simple rules; follow them and your wishes will be carried out.|
Age: To make a will, you must either be at least 18.
Mental State: You must be of "sound mind" to make a valid will; it's not a rigorous requirement. The standard interpretations require that you know what a will is and that you're making one understanding the relationship between yourself and those persons who you would normally provide for, such as a spouse or children understand what you own, and be able to decide how to distribute your property.
|Do I need a lawyer to make my will?|
|Probably not. Making a will rarely involves complicated legal rules, and most people can draft their own will with the aid of a good self-help book or software program. You just need to know what you own, whom you care about, and have a good self-help resource to guide you.|
But if you have questions that aren't answered by the resource you're relying on, a lawyer's services are warranted.
|What makes a will legal?|
|Any adult of sound mind is entitled to make a will. Beyond that, there are just a few technical requirements:|
• The will may be typewritten or computer generated or handwritten.
• The document must expressly state that it's your will.
• You must date and sign the will.
• The will must be signed by at least two, or in some provinces, three, witnesses. They must watch you sign the will, though they don't need to read it. Your witnesses must be people who won't inherit anything under the will.
• You don't have to have your will notarized. In many provinces, though, if you and your witnesses sign an affidavit (sworn statement) before a notary public, you can help simplify the court procedures required to prove the validity of the will after you die.
|Do I need to file my will with a court or in public records somewhere?|
|No. A will doesn't need to be recorded or filed with any government agency, although it can be in a few provinces. Just keep your will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is.|
|Where should I keep the will?|
|Most Provinces in Canada do not have a government department in charge of a general repository for Wills. Most wills are retained either by the law firm that prepared the Will or at the residence of the person who made the Will. |
Most law firms that hold the Will will keep the Will in safe keeping free of charge. The Will can be picked up by you at any time or the law firm willl send the Will to you upon receiving a written letter to this effect from you, or your executor upon your death.
We recommend that you do not leave the Will at your residence. Not only is it susceptible to theft, but in the event of a fire, you and your Will are unavailable. This is clearly not what you intend. We also do not recommend that you keep your Will in a safety deposit box, as in many jurisdictions the safety deposit box is sealed at the time of death. Keep the Will in any other secure place and ensure that your executor is aware of its location.
|What is the basis for a will to be contested?|
|Most of the challenges to invalidate Wills are by potential heirs or beneficiaries who got little or nothing. |
The typical objections:
1. The will was not properly drawn, signed or witnessed, according to formal requirements
2. The decedent lacked mental capacity at the time the Will was executed
3. There was fraud, force or undue influence; or
4. The will was a forgery.
If the Will is held invalid, the probate court may invalidate all provisions or only the challenged portion. If the entire Will is held invalid, generally the proceeds are distributed according to law.
Needless to say, if there is even the possibility of a Will contest, an experienced probate lawyer is a must.
|Children with Special Needs|
|If you have a child with special needs, ensure that you relay this information to your lawyer. You may wish to set aside a sum of money to deal with this issue. This is often addressed in the Will by establishing what is known as a Trust Fund. After the payment of all debts, the Trustee who is appointed under the Will to receive funds will be directed to use a certain amount of money from the Estate for the "special needs" person who is referred to as the Beneficiary. It is very important when a Trust Fund is established under a Will that you receive competent legal advice. The amount of the Trust Fund may be large if the child is to be looked after for an extended period of time. You must be sure that the Trustee, (the person who administers the Trust), is not only trustworthy but not of an age that the Trustee will likely predecease the Beneficiary. The Trust must have a provision for the replacement or addition of other trustees over time, if required.|
|Choosing a Guardian|
|If you have young children, you need to choose a guardian -- someone to raise them in the highly unlikely event you can't.|
If your children are young, you've probably thought about who would raise them if for some reason you and the other parent couldn't. It's not an easy thing to consider, but you can make some simple arrangements now that will allay some of your fears, knowing they will be well cared for.
All you need to do is use your will to name the person you want to be the guardian of your children. Then, if neither you or the children's other parent can raise them and a court must step in to appoint a guardian, the judge will appoint the person you nominated in your wills (unless, for some reason, it is not in the best interests of your children).
If you don't name a guardian in your will, anyone who is interested can ask for the position. The judge then must decide, without the benefit of your opinion, who will do the best job of raising your kids.