Your Will
Why you need a will?
If you die without a valid will, your estate will be distributed according to provincial laws. ?
Having an up-to-date will is essential to ensuring your estate is distributed as you intend it, and that your death doesn’t create a legal and administrative burden to your family.
If you die without a will, a court will appoint someone to administer your estate and distribute the assets according to a formula set out in provincial estate and family laws.
4 disadvantages of dying without will
- The person looking after your estate may not be the one you would have chosen to handle your affairs.
- The provincial distribution formula may not reflect your wishes.
- Your estate may have to pay higher taxes.
- The process of settling your estate will likely be more costly and time consuming.
No will? Here’s how your estate will be divided
For example, in Ontario, if you die without a will and have a spouse and 2 children, your spouse will receive $200,000 plus one-third of the value of the estate over $200,000. Your children will each receive one-third of the value of the estate over $200,000.
So if your estate is worth $500,000, your spouse will receive $300,000 and each child will receive $100,000.
What your will should cover?
Your will should include more than just who gets what – it should also contain information about who will carry out your wishes.
5 key things your will should cover
- Basic information about you
This includes your name, your address and the date you signed the will. Your will should also state that it is your last will and that it takes the place of any will you made before. - The name of your executor
An executor is called an estate trustee in Ontario. This is the person you name to carry out your wishes. - Your executor’s right to manage your estate
You should give your executor the right to manage your estate and pay your debts and final costs, such as your mortgage, loan payments, funeral expenses and final income taxes. - How you want your assets distributed
Your will should state who gets what from your savings and property, including your home, investments and cash. It should cover all the things you own, such as cars, furniture, pictures and jewelry. - A guardian for your children
If you have children who depend on you for support, you should name a guardian in case both you and your spouse or partner die at the same time. While your designation is not legally binding, it lets the court know who you want to care for your children. This will likely be factored into the court’s final decision.
Making a will?
There are generally 2 types of wills: handwritten (called a “holograph” will) and typewritten. Different provinces have different requirements for what makes a will valid. The requirements for Ontario are described below.
Handwritten will
For a handwritten will to be valid, it must be entirely in your own handwriting, signed by you and dated. No witnesses are necessary.
If you choose to handwrite your own will, have a lawyer review it. What you think are clear directions may not be to someone else, and your will could be contested or misinterpreted.
Typewritten will
A will is invalid if you did not have the mental capacity to sign it when it was made. A beneficiary – or a close family member who was left out of the will – could challenge it in court on the basis that you did not know and understand the terms in your will.
For this reason, avoid preparing a will during a temporary period of physical or mental frailty or illness. Wait until you have recovered before preparing a new will. If you can’t wait, get your doctor to prepare notes on your mental capacity. These notes can help prove that you were mentally fit to make a will if it is later challenged. A lawyer can also take notes on your mental capacity.
Legal advice when making your will
A lawyer can provide advice and expertise in drafting a will that truly reflects your wishes.
While a lawyer’s time and advice cost money, a lawyer can ensure that you’ve considered all aspects of your estate’s distribution – and draft a will that reflects your wishes.
How a lawyer can help
When you are preparing your will, a lawyer can help you:
- understand what you need to do and why,
- state your true wishes so they will be carried out the way you want them to be,
- make sure your will follows the laws of your province,
- reduce taxes and other costs your loved ones may face after your death,
- make sure your estate can be quickly settled, and
- choose a guardian to care for your children.
Your lawyer can also make notes on your mental capacity to confirm that you are mentally fit to make a will.
Hiring a lawyer to draft your will is money well spent. A lawyer can ensure you’ve considered all aspects of your estate.
Do-it-yourself will kits
Do-it-yourself will kits are attractive because of their low cost. Most of these kits are under $50, compared to legal fees of $300 to $1,000 or more to have a lawyer draft your will.
While some kits have been approved by experienced lawyers, and contain clear and comprehensive drafting instructions, they can’t replace years of legal training and experience. The money you save by using a kit will seem insignificant if your estate incurs thousands of dollars in legal fees to settle disputes or clarify your wishes.
Although lawyers can and do make drafting errors from time to time, they also have malpractice insurance to cover the cost of mistakes that may occur. This is important protection – and something your estate won’t have if you make a will yourself.
3 ways an improperly drafted will can cost your estate
Your intended beneficiaries may not be the ones who inherit your assets.
Even if your intended beneficiaries eventually get what you intended, the legal costs to your estate can be thousands of dollars – money your beneficiaries won’t receive.
Your estate assets can be tied up for years in litigation before they are distributed to their eventual owners.
3 ways to find an estate lawyer
A lawyer you know – Ask a lawyer you have used for other legal work if they handle wills. If they don’t, they can likely refer you to someone who does.
A lawyer other people know – Have a friend or family member recommend a lawyer they were happy with for their will. Your insurance agent, accountant or financial adviser may be able to recommend a lawyer who they know and trust.
Law Society Referral Service – In Ontario, call the Law Society Referral Service at 1-800-268-8326. They will provide you with the name of a lawyer who does wills.
Role of the executor?
The executor’s job is central to the estate settlement process – from arranging the funeral, to paying bills, to distributing estate assets. ?
After someone dies, the executor makes sure that the wishes stated in the deceased person’s will are fulfilled. In addition to arranging the funeral, key tasks often include probate and estate distribution, managing personal assets and paperwork.
3 key tasks
1. Probate and estate distribution
Locating and meeting the beneficiaries to give them an overview of the estate settlement process, from probate to distribution Putting the will through probate, a process where the executor must complete and file a number of forms with a court to prove that the will is valid and that they are the lawful executor.
Paying out bequests, distributing the remainder of the estate, and setting up and managing any trusts established in the will.
2. Managing personal assets
Locating all the deceased’s assets, making a detailed inventory, and reviewing and adjusting any insurance coverage
Arranging for the residence to be emptied and cleaned, locks to be changed, and the property sold, if necessary.
3. Paperwork
Completing and submitting forms to cancel the person’s driver’s licence, government benefits, and other entitlements
Filing claims for life insurance and pension benefits
Preparing and filing the final income tax return for the deceased.
Give your executor flexibility
Give your executor enough powers and flexibility in your will to carry out their duties and ensure that your assets are properly managed until your estate is distributed.
For example, your executor should be able to make investment decisions to respond to changes in the economy or in the stock market in order to maximize the return to the beneficiaries – or to protect asset values from declines.
Executor insurance
Executor insurance can cover any claims that are made against your executor relating to actions or decisions they make in settling your estate. Your executor can buy this insurance at the time of your death. Consider stating in your will that your estate will cover the cost of the insurance if you want your executor to have this protection.
Choosing an executor
Choosing an executor is one of the most important decisions you’ll make when you’re preparing your will. Choose someone who is willing and able to carry out the many required tasks. ?
Your executor is responsible for protecting and administering your estate, and distributing your assets to your beneficiaries. These are key duties that require a substantial amount of time and effort – and the ability to make intelligent decisions.
5 qualities to look for in an executer
Your executor should be someone who:
- You trust to manage your affairs the way you want
- Lives reasonably close to you, so it’s easy to deal with your family and your assets
- Has some knowledge of tax, investments and financial decision-making
- Is good at getting things done
- Is likely to survive you.
3 tips for choosing an executor
- Consider naming an estates professional as your executor
Many people choose to appoint family members or close friends as their executor. However, if you have a complex estate or are concerned about potential family conflicts, consider appointing an estates professional, like a lawyer or a trust company, as an executor - Consider naming more than 1 executor
For example, you could name a family member and a lawyer or trust company as co-executors. - Name a back-up
Consider naming a back-up executor in case your first choice can’t take on the role for some reason.
Even if you only name a family member or friend as executor, they may choose to hire a lawyer or estates professional to help them take care of handling the day-to-day administration of your estate. This person would be paid by your estate.
Paying your executor?
Your estate may incur a number of fees and expenses during the settlement process, such as commissions on home sales, fees on investment transactions, estate administration tax (commonly called a probate fee) and your executor’s out-of-pocket expenses. Your executor is also legally entitled to a fee, even if they are a friend or family member.
While friends or family members may say that they will not charge a fee, this can change when the extent of the work involved becomes apparent. There have been many cases where the issue of executor fees is settled by a court. Courts generally accept that the executor is entitled about 5% of the estate’s value, plus an ongoing management fee of 2/5 of 1% of the average annual value of the estate assets during the settlement process.
Discuss executor fees up front
Discuss the issue of executor fees with your family and your executor when making your estate plan. These fees are often a surprise to beneficiaries so it helps if they understand what the usual fee range is. They should also understand that your executor could be entitled to additional fees if the estate becomes unduly complicated and requires more work for the executor.
Don't let fees influence your executor decision
Family members or close friends may choose not to charge an executor fee. However, this should not be your primary reason for choosing them. You need someone who will do the job well, not necessarily cheaply. Executors earn their fee – and estate settlement mistakes can be costly.
