All you need to know about Wills
A Will is a written document disposing of your property after death and it is only effective upon your death. The Estate Trustee (also known as “Executor”) is the person named in the Will to carry out its instructions. If the Will has trusts that may be lengthy you need to consider this in appointing a person
as an estate trustee (in any even you should name an alternate). If there is more than one executor, the executors must act unanimously, unless the will provides otherwise.
A Will must be in writing, signed by the testator in the presence of two witnesses who sign in the presence of each other. The witness may not be a beneficiary or a spouse of a beneficiary. A holograph will is a will wholly in the handwriting of the testator and requires no witnesses. A will is revoked by marriage unless the will is stated to be made in contemplation of the marriage.
How Golden Law Office can help with your Will
Peggy Golden can help can help you prepare a will that is a legal and enforceable document: a document which will avoid provisions which could lead to ambiguities or fail to provide for all reasonable contingencies; a document which will contain appropriate administrative provisions to allow your trustee to deal with assets.
Your lawyer will need to know your finances in order to prepare a Will. Not providing full disclosure to the lawyer will mean that she doesn’t have all of the information needed to properly draft your Will.
Before seeing your lawyer about a will, consider what your intentions are, express them clearly to the lawyer and provide for contingencies.
If you have minor children, you need to consider who to name as Guardian of your children. The statement of a guardian is a wish only and is not legally binding on a court.
An additional consideration if you have minor children, is to make provisions that any money which is to be left for minor beneficiaries held in trust. Your lawyer will discuss with you your wishes and put in place an appropriate testamentary trust that will ensure funds may be accessed by the Executors for the maintenance, education and benefit of your children during their minority (or beyond). The testamentary Trust in your Will may delay distribution of funds to your beneficiaries for a period of time. Many people do not want their children to have absolute access to funds until age 25 or beyond.
If you wish to make a list of items to be disposed of in a document from your will (“ a memorandum”), the only way that the list is legally binding is if the list is made before signing your will. The list then cannot be amended without amending the Will. The list becomes a binding memorandum and is part of the Will, incorporated by reference. If you do not wish to have the memorandum, you may prepare a “precatory memorandum”. This is a memorandum that expresses a wish, but it is not legally binding on your Estate Trustees.
Everyone should have a Will prepared by a lawyer. Contact Peggy Golden and Golden Law Office to discuss your needs.
Ten Reasons for making a Will
- A Will helps ensure that your assets are distributed in accordance with your wishes and not in accordance with the Ontario Succession Law Reform Act.
- A Will allows you to select an Estate Trustee (Executor). This is the person who administers your estate (makes decisions on funeral arrangements, liquidates and distributes your assets in accordance with the terms of your Will, pays debts and income tax owing)
- A Will allows you to make trust provisions for your beneficiaries that are under the age of majority (18 years). Without a Will shares of minor beneficiaries would be paid into court to be held until the beneficiary reaches the age of 18 years.
- A Will allows you to make trust provisions which Will allow assets to be held for your beneficiaries to an age greater than 18, if this is your wish. (Without a Will your heirs Will be entitled to distribution of their share at age 18 which may be too young to handle a large sum of money.)
- A Will allows you to state who you would like as a Guardian of your minor children.
- A Will can incorporate in it an insurance trust which allows more flexibility to set up the terms on which you want the insurance proceeds paid out (rather in a lump sum the proceeds may be handled thought a trust) and still avoid having to pay Tax on the proceeds of the insurance.
- With a Will you can make provisions such as a Henson Trust to ensure your disabled beneficiary does not lose the valuable Ontario Disability Support Plan benefits she receives.
- With a well drafted Will or multiple Wills you can reduce the Estate Administration Tax payable.
- Without a Will your heirs may be required to endure costly and lengthy proceedings to transfer your assets. An estate administration bond may be required by the court which increases the estate administration costs.
- Having a Will shows your loved ones that you cared enough to plan for a smooth transition of your hard-earned money.
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