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Why should I have a will? ... |
- If you die without a will (in legal jargon, this is called "dying
intestate") the law dictates how your estate will be distributed, and your
assets may pass on to people you never intended to benefit; on the other hand,
if you have a will then you control how your estate will be divided.
- If you die without a will, someone whom you would never have chosen yourself
may end up administering your estate through court appointment; on the other
hand, if you make a will, then you have control over the appointment of an
executor and trustee.
- If there are minor children (that is, under 18 years) who may benefit
from an estate, it is usual to create a trust and to appoint someone to hold
their monies until they reach an age determined by you; on the other hand, if
you do not have a will, and minor beneficiaries inherit your estate, their
share will likely end up being administered by a government official known
as the Children's Guardian.
- In larger estates, there may be compelling tax reasons for having a will.
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Can I write my own will? ... |
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You can create a will in your own handwriting, and, of course, in an
emergency, such a will is desirable. As well, there are
do-it-yourself will kits on the market, which provide "easy to follow
instructions". However, you should carefully consider the following before
you try to create your own will. |
- The law of most provinces, and Ontario is no exception, provides very
rigid rules for how wills are to be signed, and in many cases, witnessed. It is
easy to misinterpret the "do-it-yourself" instructions, and an error in
signing and witnessing could possibly invalidate a provision of the will, or even the will in its entirety.
- If you wish to include any special clauses in your will, there is a
risk that, despite your best efforts, the wording may not be clear enough for
your intentions to be fully understandable once you have died. These kinds
of wording problems have often led to lengthy and costly court battles, which
a modest estate especially cannot afford.
- In some cases it may be necessary for witnesses to swear an affidavit
before a commissioner of oaths years later after the maker of the will has
died. Often these witnesses are hard to find.
- Occasionally, someone unscrupulous may try to change a homemade will to
suit his or her own interest.
- The validity of a homemade will, particularly of an elderly person, may
be more susceptible to attack in the courts by unhappy family members, because there is no independent witness who can testify as to the
capability and intentions of the maker of the will.
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Why should I have a lawyer prepare and witness the signing of my will?
- A lawyer is aware of all of the formal rules regarding the signing
and witnessing procedures, thus greatly reducing the risk of invalidating a
will on a technical ground.
- A lawyer is experienced in wording special provisions in your will, thus
greatly reducing the chance of some later confusion about a client's real intentions.
- While of course it is possible for all witnesses to move away or die, it
is often easier to track a lawyer or his other staff if a witness's signature is
needed years later.
- In taking instructions for a will, most careful lawyers will keep notes in their
files regarding their client's intentions, and, particularly when dealing with
elderly individuals, the client's capacity to make a will; and often the
lawyer is available as an independent witness if these things become an issue
after the death of the maker of the will, or at the very least, the lawyer's
notes are available.
- Most lawyers will offer to store a client's will in a secure place, for
safekeeping, usually at no extra cost to the client.
- The lawyer's fee for preparing a simple will is usually very reasonable,
especially when considering the importance of having a will.
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So what information should I have available
when I go to see a lawyer? |
- You should have the name of an executor, the person charged with the
responsibility of settling the affairs of your estate. This person does not need
any special training, and usually the lawyer who acts for the executor will
advise of his or her responsibilities throughout. However, the executor
should be someone in whom you have a great deal of trust, since this person
will be handling the money in your estate. It is a good idea not to appoint
someone who is much older than yourself, since his or her life expectancy is
shorter than yours.
- It is a good idea to have prepared a detailed list of your assets, even though
you may consider them modest. There may be certain specific items you wish to
leave to certain individuals, and these should be listed too.
- If there are any minor children, you should have available the name of someone
who has agreed to to be entrusted with the care and custody until they reach 18 years.
Again, this person should be close to the age of yourself and your spouse, and
preferably someone who has children of his or her own. Ask yourself the question:
"Is this the person I would like to have raise my children?"
- You should have a good idea how your estate is to be divided. In dividing your estate
it is useful to think in terms of percentages or fractions, rather than specific
amounts. Give some consideration, also, to alternative beneficiaries, especially
where your immediate family unit could suffer a common disaster, leaving
no one named to inherit your estate.
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Contact Us
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If you have any questions concerning what you have read here, or about the cost of making a will,
please feel free to contact us.
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