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MAKE SURE YOU HAVE A WILL

Over the course of your life you will sign many documents, but your will is one of the most important document you will ever sign. With very few exceptions, everybody should have a will. It is the only legal document that can ensure that your assets will be distributed to the beneficiaries of your choice, rather than by a government formula. It is estimated that only one out of three adults has a will, which means that two-thirds of the time when people die, their wishes are not met and the government has to become involved. A will ensures that your estate is settled in a timely and efficient manner, rather than in a delayed fashion that can be a great burden to your family.

Combined with effective estate planning, a will can ensure that the least amount of tax is payable. Although there are no estate taxes or succession duties in Canada at this time, there is a deemed disposition of your assets, which could trigger a taxable capital gain on your death.

Of those Canadians that do have a will, many do not review it regularly or modify it based on changing circumstances. This is because typically, people first think of their will at predictable stages of the life cycle, such as at the time of marriage, the birth of a first child, the first time they fly without their children, or upon news of the sudden death of a friend or relative. Once the will is completed, they then forget about it. Not updating it can be as bad as not having a will at all. It could cause the beneficiaries a lot of grief, stress, time and money when those problems could so easily be avoided by regular will review and updating. If you write your will yourself, it could have potentially serious financial implications if it is not done properly.

There are basically three ways to have your will prepared: writing it yourself, having a lawyer do it for you, or having a trust company arrange a lawyer to do it for you. Here is a brief overview of the first two options.

Self-written
This is the poorest choice, because it could have defects or inadequacies that result in legal, financial and administrative grief for your family, relatives and beneficiaries. If you are the slightest bit ambiguous, your expressed wishes may be legally interpreted differently than what you intended. Worse still, a clause in the will could be deemed void or the whole will could be considered void for various technical reasons. Some people do their own will by drafting it from scratch or using a “standard form” of will format purchased in book or stationery stores. The risk is very high when trying to save money by doing it yourself rather than using a skilled professional. It is false economy, and depending on your situation, you could stand to lose a lot. Many people assume that if they write their own “simple” will, it will suffice. What may appear to be simple to a layperson, however, could require more complex decisions and wording. Each person’s situation is unique. There are better, and ultimately more inexpensive alternatives to provide you with peace of mind.

Lawyer
Wills, in almost all cases, should be prepared by a lawyer who is familiar with wills because he or she is qualified to provide legal advice, and knowledgeable about how to complete the necessary legal work.

Depending on the complexity of the estate, however, a lawyer may not have the expertise to advise you on other non-legal issues such as tax and other estate-planning considerations. If that is your situation, you should enlist the expertise of other specialists. A lawyer specializing in wills could recommend various tax and estate planning experts.

The legal fee for preparing a basic will is very modest, generally between $150-200 per person – a small price to pay for peace of mind. If your estate is more complex, this fee could be higher because of the additional time and expertise required. A “back-to-back” will is a duplicate, reverse will for husband and wife, and is generally prepared at a discount.

Copyright © 2021 , Douglas Gray, LL.B. All rights reserved. Any reproduction of the material contained in this website is strictly prohibited. E&OE (Errors and Omissions Excepted). Please refer to Copyright and Disclaimer at bottom of website page. Refer to Books section for related information.

 

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