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Drafting Of a Will

Drafting Of a Will

Many people mistakenly believe that wills are for just for the elderly or the extremely wealthy. Sometimes people think they are too young.  Others fail to do a will because they think it will be too complicated or expensive. Although more than 50 percent of Canadians die without a will, the truth is, wills can be simple or complex, modestly priced or costly. Regardless of the particulars of each persons unique situation – everyone is well advised to have one.

A will is an important written document that records your final wishes for the distribution of your belongings at death. Everything you own is part of your estate, and everything and everyone dear to you should be included in your will.

As well as real estate and financial wealth, a will can also include directions on providing for children and dependents with special needs. You can appoint a guardian for your children, assign an executor to carry out the terms of the will and leave directions for your burial wishes.

Young couples with families can make sure they have a say in who is to take care of the children provided for, in the event both parents die at the same time. Those people with large estates, or complicated family situations may require a more involved will. People with modest estates and a few precious belongings can benefit themselves and their loved ones by making their wishes legal in a simple will.

If an individual dies without a will in Ontario, “Intestacy Laws”, decide how the estate will be distributed.  If the deceased had minor children or other dependents, the law makes the final decision on how they will be cared for. Individuals with blended families or less common living situations, who die intestate, can unintentionally leave partners and children behind, with little or no shares in the estate and an uncertain future.

While a will is a set of wishes to be carried out at death, a living will  sets out your wishes for care, in the event you become seriously ill and are unable to speak for yourself. It could include conditions, for administration or continuance of life support, should the situation arise.

Power of attorney documents allow individuals to appoint someone to take care of them or their affairs in the event they become physically or mentally incapacitated to the point they are unable to do it themselves, while living.  While these are important, stand alone documents in their own right, they are often included in a living will.

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 beset 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, and also the guarantor of the trust. 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 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.

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.