Why You Can’t Live Without A Will
Written by Nicole Natalie Garcia
January 12, 2021
At Watson Labour Law one of the first things we ask clients when they visit us to draft their Will is whether they understand what is dealt with in a written Will.
What is a last Will and Testament (“Will”)?
A Will is a legal document outlining your personal wishes regarding the distribution of your estate. The person who is writing their Will is called a Testator. The distribution of your estate is the method in which what you own will be divided. Normally, this is based on the monetary value of your estate reduced by any debt. The value of your assets less your debt is known as the residue of your estate which is normally distributed in percentages among your beneficiaries. A Will can also deal with the distribution of a Testator’s personal effects. These are your personal belongings such as family heirlooms, collector items and jewelry. Your Will can address who you select to be the Guardian of any minor children you may have. For many individuals, this is one of the main reasons they draft their Will. Speaking to your loved ones about your death can be difficult because no one wants to imagine the passing of someone they cherish. One of our Watson Labour Law experienced lawyers’ can assist you through this difficult conversation to make the process less stressful and far more efficient for your family when you are gone. One of the benefits of having a written Will is that your loved ones will have peace of mind knowing they followed your exact wishes.
Executor or Estate Trustee
In your Will you determine who will manage your estate, this person is referred to as your Executor or Estate Trustee, these terms are interchangeable. You should choose someone you trust and someone who is organized. For some, this will be their spouse. For others, it may be a sibling, relative, or trusted friend. If you have children, you may decide that you would like the Executor and Guardian to be the same individual within your Will. Although the roles are distinct, the position can be held by the same individual. The comfort in having a Will is knowing that you intentionally selected the appropriate individual to act in their role. Whether it be a trusted friend or family member you can be confident that your estate will be handled in the way you would have wanted. If a written Will has not been prepared, the court may appoint an executor on your behalf. Why not make the process easier for your family and choose the Executor of your Will? At Watson Labour Law, one of our experienced lawyers’ will provide helpful legal advice in order to select the appropriate person for the role.
Another important element of your Will is who you will choose as Beneficiaries. This is the person or people who you intend to leave everything to. For example, married couples often select their spouse as primary Beneficiary and their children as contingent Beneficiaries. This means your spouse would be first to inherit, but if your spouse has passed, your Will can express that your estate be distributed amongst your children. Should you pass without a written Will, there is legislation in place to determine who will inherit your estate. That means the government could potentially choose who your Beneficiaries will be. You have worked hard for what you have, and you should decide who receives the benefit upon your passing. At Watson Labour Law an experienced lawyer can be retained to draft your Will and they will help you clearly outline your Beneficiaries!
Virtual Will Appointments
In order for a Will to be valid, it must be signed and dated by the Testator in the presence of two witnesses. This is normally completely with your lawyer in your Will appointment in order to ensure all the formal requirements are adhered to. Some individuals live outside the jurisdiction of their lawyer’s office. In that case, a lawyer can meet with you virtually for your initial appointment and later walk you through the process of signing your Will in your locality. There are additional steps which need to be precisely followed, and this can be explained to you in detail by your lawyer. A major benefit of this option is the incredible solution it offers to those in strained circumstances who need a properly executed Will during the pandemic and cannot travel to see their lawyer in person. At Watson Labour Law we offer both virtual and in person Will appointments for our clients.
Probate and Estate Administration Tax
Probate is the procedure which gives the Executor or Estate Trustee the authority to act in their role of managing and distributing an estate. During this process a Judge will confirm that the authority was in fact given to the Executor in the Will. This is also where a Judge will approve the validity of the Will. When an application for Probate is submitted, the government requires that Estate Administration Tax (EAT) be payable, which is charged on the value of the deceased’s assets. There are assets to be included and excluded in the calculation in order to determine the tax amount. If your application is approved by the Ontario Superior Court of Justice, the Court will provide your Executor or their lawyer with a Certificate of Appointment which can then be used to administer the estate. Financial institutions and other bodies that hold the assets of the deceased may require that Probate is completed before any assets can be accessed by the Executor. In your Will appointment, we will outline various ways you can reduce the amount of EAT payable by your estate and explain the Probate process in more depth.
“Will Kits” and Holographic Wills
A “Will Kit” or a “fill in the blank” Will is a standard document or electronic form that allows you to either click boxes or manually input information regarding your family members and financial circumstances. I suggest you refrain from utilizing these kits, no matter how inexpensive they may be! “Will Kits” do not provide legal advice regarding the disposition of your estate. These kits will not provide guidance for your circumstance nor the legal ramifications should you wish to proceed in a particular way. A critical issue not contemplated by a “Will Kit”, is the lack of legal expertise regarding the signing of your Will. This error can result in your Will being invalidated during the Probate process.
A Holographic Will by definition is Will that is entirely handwritten by the testator, signed and dated. Section 6 of the Succession Law Reform Act deals with requirements of a Holographic Will. Holographic Wills can pose a solution to those under time constraints or those looking for an inexpensive option. Nevertheless, the risks associated far outweigh the benefits. Some risks associated with Holographic Wills are:
- Lack of clarity;
- Inability to locate the Will;
- Issues relating to the validity of the testators handwriting and signature;
- Lack of full and final expression of intent by the testator;
- Missing formal requirements according to section 6 SLRA;
- Issues relating to handwritten alterations to the Will;
- Costly litigation & legal fees associating with Probate.
Failure to adhere to the exact requirements of a Holographic can be detrimental to your family. It would be prudent to retain an experienced lawyer to draft your Will in order to avoid making mistakes commonly associated with “Will Kits” and Holographic Wills.
Why should I get a lawyer to draft my Will?
If you have thought about drafting your Will – you are ahead of the curve. Many choose to avoid the topic assuming everything will pan itself out as time goes on. This is not the case. There are major issues that can burden your loved ones and family members upon your passing should you choose to avoid drafting a Will. It is important you choose an experienced lawyer that will explain all the components of your Will to you. I would encourage those who have already prepared a Will to revisit it if your circumstances have changed.
Despite the simplicity of your estate, there may be certain wishes you want followed upon your passing such as:
- Select the appropriate Executor and Beneficiaries;
- Customize a clause to reflect your specific wishes;
- Leave a valuable belonging to a beloved niece or nephew;
- Make a donation to a Charitable Organization;
- Clearly outline your funeral wishes that you want to ensure are followed.
If you want to ensure your wishes are correctly addressed within your Will and that you make the right decision regarding who you name in your Will, you should retain a lawyer. Our lawyers will:
- Provide you the appropriate legal advice regarding each clause;
- Discuss estate administration costs and the responsibility of your Executor;
- Outline various ways to reduce the amount of EAT payable by your estate;
- Properly execute your Will following legislative requirements.
In selecting a lawyer at Watson Labour Law to prepare your Will, you can be certain that your Will is exactly what you want, the way you want it. We always tell our clients, we are here to help you through the one thing no one wants to talk about, and we guarantee you will be glad you made your loved one’s life that much easier.
Call Watson Labour Law today to book your Appointment with our Estate lawyer Nicole Garcia!