Wills

Your will is a key estate planning document. It takes effect on your death and deals with all personal and financial matters relating to your estate.

There are many important reasons for you to have a will properly drafted, as follows:

1. CONTROL / PEACE OF MIND – a person should be entitled to distribute his/her assets in a manner he/she wants to the people he/she wants, rather than leaving it up to the defaulting legislation (Wills and Succession Act). For example, where a person has a spouse and children, the Wills and Succession Act might allocate a portion of the estate to both the spouse and each of the children. Having a will in place allows you to distribute all of your estate to your spouse, and your spouse will then use those assets to look after your children. In addition, having a properly drafted will allows you to leave your estate to people who would not otherwise be covered by the Wills and Succession Act if you so desire (for example, friends, charities, special relationships). Finally, dying without a will can make things very messy and the costs to administer the estate rise exponentially. Having a properly drafted will speeds up the probate process and keeps estate costs to a minimum.

2. SPECIFIC ASSETS – in your will, you may deal with specific assets of value or items that have personal meaning to you (for example, jewelry, family heirlooms and artwork) and leave them to the people you choose.

3. GUARDIANSHIP – in your will, you are able to appoint a person to be the guardian of your minor children. Although the Public Trustee has ultimate jurisdiction over minor children, being able to appoint a guardian can give you peace of mind in that the guardian will be someone that you know and trust to raise your children.

4. COMMON DISASTERS – It is possible that a family vacationing together may experience a common disaster. A properly drafted will ensures that your estate will be distributed to the people you choose if your entire family dies at the same time.

5. CONTROL BURIAL ARRANGEMENTS – your will gives you the opportunity to express to your executor what your funeral and burial wishes are. While not legally binding on your executor, it is very persuasive and your executor is more likely to follow your instructions if they are stated clearly in your document.

6. REDUCTION OF TAX / TAX PLANNING – if you have a sizeable estate or particular types of assets (for example, large insurance proceeds on your death or significant liquid investments), then it is possible to include testamentary trusts in your will and do other tax planning to minimize the amount of tax your estate will have to pay on your death or your beneficiaries will have to pay on any income they earn on the assets left to them. By doing this, more can be left to your beneficiaries. One or more testamentary trusts may be created in your will, depending on the size and types of assets in your estate and the number of beneficiaries you have. A testamentary trust is one that takes effect on your death, and it is treated as a separate taxpayer for tax purposes, subject to the marginal tax rates applicable to all individuals. Including one or more testamentary trusts in your will gives your estate the ability to split any income on such assets between your beneficiaries and the testamentary trusts, thereby reducing the overall income tax paid on such income. Testamentary trusts also protect your assets from claims against spouses of your children in the event of a marriage breakdown or any creditors of your children or other beneficiaries should they run into financial difficulties.

7. CHARITABLE GIVING – if you have charitable inclinations, you may draft your will to plan to give a portion of your estate to charity. As a donation to a charity will, in most cases, give rise to a charitable tax receipt, it is important to have your will properly drafted to ensure you obtain the tax receipt and are able to claim it against the income you earn in your year of death.

8. SPECIAL ISSUES – a will gives you the opportunity to deal with specific issues which are unique to you. For example, if you have unexercised stock options at your death, you may give your executor the power to exercise these after your death. In addition, if you are a US citizen or US resident, you may be able to do specific planning to minimize the impact of certain punitive US tax rules. Further, if you have an investment in a family-run or closely-held private business, you may do some planning in your will to ensure your shares get transferred to your business partners in a tax-effective manner.

9. HOLOGRAPH WILLS / WILLS KIT – Many people feel that they are saving legal fees if they draft their own will or purchase the Canadian Wills Kit. However, doing your own will is like doing your own dentistry – you may save money initially but it can be extremely painful later on and may cost you more in the long run to fix any problems. By having a properly drafted will, you can minimize challenges to your will by making it clear who is to benefit and your will shall be tailored to your specific needs and circumstances. A will prepared by a person without obtaining proper legal advice can be subject to much interpretation because it is not drafted properly, does not give the executors sufficient powers (thus, a court has to give direction) or because the person is not aware of their legal rights or obligations to provide for certain people. This can increase estate costs significantly and reduce the amount left to your beneficiaries.