Drafting a Will
Wills are not only for the wealthy or elderly. They are for everyone and it is never too early to start. The type of Will you want can be flexible to your personal situation. Complex or simple. Expensive or modestly priced. Regardless, it is wise for everyone to have one. Not only for yourself, but for your intended beneficiaries. A Will gives clear guidance and reduces stress on loved ones when handling your Estate.
A written Will records your final wishes on how you want your belongings distributed after death. A Will isn’t only for property or financial details. but directions on custody of children, assigning an executor and directions for burial instructions.
A larger estate or an intricate family situation may require a more complicated Will, while a simple Will can be the right fit for smaller estates. Couples with minor dependents need to set specific directions for care of children in the even that both parents pass away.
“Intestacy Laws” decide the distribution of an estate if an individual dies without a Will in the province of Ontario. If care for minor children is needed in the event of the death then the law makes the decision on how they will be taken care of. A person with a less common living situation that dies without a Will can leave loved ones with little or no portion of their estate. The future becomes uncertain for them with unnecessary stress.
Included in many living Wills are power of attorney. Power of attorney sets out instructions on who handles an individuals affairs and estate in death or if while alive they become physically/mentally incapacitated.
A well prepared Will should address the following list of details:
A Clause To Revoke Any Previous Wills
Executor For The Will – The executor is the person appointed by the testator to finalize the estate. He is responsible to carry out the many duties that ensure the estate is distributed according the directions in the Will. When choosing your executor it is wise to have someone who is trust worthy and capable of taking on this time consuming and important position.
An Alternate Executor – It is important to list another choice of executor in case the original person is no longer living or unable to carry out the executor duties due to illness or other reasons
List All Beneficiaries – Your Will should name all beneficiaries who will receive any part of your estate. Known relatives that are not named in the Will, but expected a final gift, may challenge the Will on the grounds that they were accidentally omitted. If they will not be receiving a share of the estate, name them and clearly state they are not to receive anything.
List All Assets – List the items that make up your estate and the persons you want to receive them. This could include: Real Estate, Stocks and Bonds, Life Insurance Policies, Business shares, Furniture, Jewelry, Antiques, Heirlooms, Collections and Memorabilia.
Bequests – May include donations to hospital, church or other charities
Guardianship – Appoint a guardian for underage children or special needs dependants. This person is responsible for managing the care and affairs for people who are unable or too young to do it for themselves. If the testator does not choose a guardian, for people who need one; when the time comes, the court will.
Trusts and Trustees – A trust is an agreement where a certain person or entity is responsible for holding the gift or funds for the person who is to actually receive it. There are many kinds of trusts available. They can be set up to provide for recipients either while the testator is alive or after death.The person who sets out the conditions of the trust is the guarantor and the person who will eventually receive the gift is the beneficiary. If trusts are included in the Will then the person writing the Will is the testator of the Will. A trustee is a person or entity such as a bank or other corporation, to be legally responsible for managing the trust in the meantime. A trustee can ensure that your gifts to minor children are dealt with according to the testator’s wishes, and not the impersonal dictates of the law.
Burial Wishes – The more clear you are on these final details, the easier it will be for loved ones, to understand and carry out your wishes. This could include your decision of cremation or burial, the type of service and the placement of final remains. It is a huge burden for loved ones to make these important decisions without your direction, while they are mourning.
Taxation – The way your assets are dispersed can affect the amount of taxes that must be paid on your estate after your death. With careful estate planning ahead of time, you can minimize taxes and leave more to your loved ones.
An experienced Estate lawyer lawyer can advise on elements that need to be considered when writing your Will. An estate lawyer can help you choose the best options for creating a Will that reflect your wishes and the needs of your family over the years, whether it is a simple Will or a more complex scenario where multiple Wills are advisable.
Births, deaths, changes of marriage status, real estate sales or purchases and children coming of age are common signals to update a Will. Today’s Wills reflect our increasingly complicated life situations. They should be clear and comprehensive in order to limit opportunities for misunderstanding. It takes care, and legal expertise to draft a Will that reflects the wishes of the testator and can stand the test of a possible dispute or contesting of the Will. While an individual Will can be simple or elaborate it should be as unique as the person to whom it belongs, and to the heirs that it serves.
Strike & Phillips LLP has been serving the community of Clarington including our home town of Bowmanville and surrounding areas including Oshawa, Whitby, Peterborough, Cobourg, Ajax, Pickering and the Greater Durham Region since 1925.
Call us at 905.623.5791 or try our email form on our Contact Us page.