# Do you have a will, and if so......



## jargey3000 (Jan 25, 2011)

....did you use a lawyer to prepare it, or use some form of will kit?


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## AltaRed (Jun 8, 2009)

Pick someone who specializes in family/estate law and I would seek out someone who is not a one person office, the rationale being that in the event the lawyer gets hit by a bus, there is someone else in the office to pick up the file. I would also pick someone a few decades younger than I on the assumption s/he will outlive me and be there to help the Executor.

While a Will is important, I consider Power of Attorney and Personal (Health) Directive (BC) to be the more important documents. 

An Enduring POA has the keys to your vault (life) and can act on your behalf in all legal matters as if s/he was you. Pick your POA wisely and I'd suggest a Primary and an alternative in the event the Primary cannot act. Likewise, pick your primary and alternate (or make it 2-3 people) for your Health Directive wisely. They will decide where and how you live if you become incompetent and when to pull the plug if you so direct that you don't want to be kept alive by artificial means, are brain dead, etc, etc, etc. 

From your perspective, the Executor of your Will is the easier job since you are already dead and the Executor can't muff up the rest of your life in hindsight. It is a defined process in your province of jurisdiction that can go off the rails but less so. Pick someone who is conscientious and organized and will take the time to get the job done. The Executor doesn't have to be overly skilled and intelligent but s/he has to have the initiative to roll up his/her sleeves and get the job done, contracting for legal and/or accounting help when necessary. We see examples in forums and media of probate and Will processing go off the rails (the Executor doing nothing) because s/he is overwhelmed and is frozen in fright.

You need to go in with those things in mind. As for the Will, know before you go if you have your RRSPs/RRIFs set up as successor annuitant and similarly for your TFSAs. The lawyer will want to know how you have those set up. If the beneficiaries are different from those of your Will, is your estate responsible for the taxes of the collapsed RRSP/RRIF which is the default. Will your Will contain provisions for 'contribution of shares' to charities for a cap gains tax break, or are charities included at all?

You will need the legal names of all the people mentioned in your Will, POA, PD, etc. You should have also asked the people who will be your Executor, Attorney, etc. if they are prepared to do that job. You'd be surprised at how many people don't do that and it is a surprise to those, albeit in the case of a POA, they have to sign those documents anyway You don't have to have any copies of your financial assets but you need to know how you want your assets distributed so that the appropriate clauses can be written.

In the case of your adult children, lawyers usually will include a clause that says, in the death of one of them that may pre-decease you, the proceeds then go to that person's surviving children in equal amounts. Some lawyers will propose a clause about where your assets go if ALL of you and your family happen to die together, as in a plane crash enroute to a vacation or similar. It is not that uncommon for all members of a family to perish together.


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## Gator13 (Jan 5, 2020)

Use a lawyer and have it done properly.


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## ian (Jun 18, 2016)

We have a will. A lawyer prepared it. We update as required. Rewrote much of it five years ago.

Prior to engaging a lawyer fifteen years ago or so we did buy a will kit.

We had no intention of doing it ourselves. I wanted to review the process, understand what data would be needed what each of wanted clarification on. It was money well spent to prepare us for the process.

My parents both had wills and their affairs in order. I appreciated that they did this so much. He made things much easier for me as the executor.

Don't focus on the cost. Focus on the benefits.


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## MrMatt (Dec 21, 2011)

jargey3000 said:


> ....did you use a lawyer to prepare it, or use some form of will kit?


Hire a lawyer, they often have a fixed price for a standard will.

They'll ask good questions, and of course if there are any arguments over what you intended they're of course confirm your intentions.


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## TomB16 (Jun 8, 2014)

My will was done with a free will kit until about 5 years ago when it was redone by a lawyer.

I am comfortable the previous was legal and enforceable. If it is a simple will, it doesn't take a ton of legal boiler plate. If it is a complex will, it needs to be simplified.

We used it as an opportunity to test out a young lawyer. It cost a couple of hundred dollars and helped us understand we needed to stick with our existing lawyer who is in his 70s and down to working 2 day weeks.


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## jargey3000 (Jan 25, 2011)

OP: I appreciate all your comments. Thank you.


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## pwm (Jan 19, 2012)

I did our own wills based on kit information many years ago when we had nothing much. Then later when our assets increased, we went to a lawyer (the one we used when we had a house built), and got wills, POAs, and health care directives done. We went one step further and prepaid funeral arrangements. All those docs are kept in a safe, along with financial info, etc. Both my children know the safe combo.


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## newfoundlander61 (Feb 6, 2011)

We used a lawyer for both our wills and POA's.


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## Retired Peasant (Apr 22, 2013)

I thought I remember you asking this before, so I went looking...
From 2015 Wills - DIY?
2016 Wills, Probate - Advice & questions?
2018 DIY Will?
probably others.
What is your reluctance? It's been 7 years.


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## AltaRed (Jun 8, 2009)

I suspect he is not getting the responses he'd prefer to hear, so he keeps asking hoping for a different result?


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## jargey3000 (Jan 25, 2011)

world class procrastinator...🤷‍♂️


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## londoncalling (Sep 17, 2011)

Review of our will is long overdue for a number of reasons. 

1. Change in assets
2. Change in employment
3. Guardian is going through divorce
4. Current will is basic and does not include items like incapacitation, resuscitation, etc. 

Your procrastination @jargey3000 has reminded me that we too have been putting off a very important action. Not sure how current this link is but at least half are in the same situation. I think if the deceased was the one that had to deal with the consequences of an intestate situation more would be proactive. Thanks for asking the question once again in 2022 Jargey.

Number of Canadians without Wills significantly under-reported (legalwills.ca)


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## james4beach (Nov 15, 2012)

I'm around 40 yo, and don't have a will. I also don't have any dependants.

Should I prepare a will?

Maybe it wasn't a concern earlier in my career but I've been able to accumulate a decent amount of investments. I just assumed that if I died, the assets would go to my only immediate family members (mom & dad).


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## AltaRed (Jun 8, 2009)

Check your province's legislation or a legal website to see what happens if you die intestate. It is not always that clear. 

The bigger issue I see is what I posted initially... Power of Attorney and Health Directive. What happens if you became mentally incapacitated due to a head injury of some sort? Getting hit as a cyclist, falling down icy steps, etc, etc. In my not-so-humble opinion, it is stunningly stupid not to have a POA in place to take care of one's affairs if they become incapacitated.


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## james4beach (Nov 15, 2012)

AltaRed said:


> Check your province's legislation or a legal website to see what happens if you die intestate. It is not always that clear.
> 
> The bigger issue I see is what I posted initially... Power of Attorney and Health Directive. What happens if you became mentally incapacitated due to a head injury of some sort? Getting hit as a cyclist, falling down icy steps, etc, etc. In my not-so-humble opinion, it is stunningly stupid not to have a POA in place to take care of one's affairs if they become incapacitated.


Thanks, these are good points. I should start looking into this.


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## HappilyRetired (Nov 14, 2021)

We used a will kit to get started and figure most of it out. Then we went to a lawyer.


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## ian (Jun 18, 2016)

I view having a will, POA. and Health Directive as a basic obligation that I have to my spouse and to my children. As does my spouse.

No different, than in my 70's, I keep an up to date consolidated list of finances, banking data, DB pension data, safety deposit box details, insurances, etc and relevant contacts.

These, plus a review of our latest credit card and bank statements provide the entire finance picture going forward.

They will not be left in limbo or high and dry, or guessing if I get hit by a bus tomorrow.


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## sags (May 15, 2010)

I agree that POA and health directives are very important and we had it all done last year, but from personal experience when major decisions had to be made for my dad in the ICU unit, the family was gathered and looked to me to be the spokesperson for the family.

The doctor put forth a couple of scenarios.........none of them good, and I had to make the choice I thought my dad would want me to make.

Nobody asked for the paperwork to prove that I had the authority to make the decision and I wonder if they ever do in those situations.

I can't imagine a doctor saying......unless you provide the legal authority nothing will be done.

I mean......somebody in that time and space had to make the immediate decisions, with or without the legal documents to do so.


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## londoncalling (Sep 17, 2011)

sags said:


> I agree that POA and health directives are very important and we had it all done last year, but from personal experience when major decisions had to be made for my dad in the ICU unit, the family was gathered and looked to me to be the spokesperson for the family.
> 
> The doctor put forth a couple of scenarios.........none of them good, and I had to make the choice I thought my dad would want me to make.
> 
> ...


I do not have personal experience with health directives but I have heard from others of doctors asking if there is one in place. The paper work is very important when there are disagreements. Had your instructions differed from the directive of any written instructions there could be consequences.


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## Beaver101 (Nov 14, 2011)

^ Usually "disagreements" there is not within the family but between the family and doctor(s). 

Doctors say "pull the plug" ('cause they know best and get to free up a bed) versus the family who says "no, not yet".


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## m3s (Apr 3, 2010)

jargey3000 said:


> world class procrastinator...🤷‍♂️


Did you fix those windows yet


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## Plugging Along (Jan 3, 2011)

sags said:


> I agree that POA and health directives are very important and we had it all done last year, but from personal experience when major decisions had to be made for my dad in the ICU unit, the family was gathered and looked to me to be the spokesperson for the family.
> 
> The doctor put forth a couple of scenarios.........none of them good, and I had to make the choice I thought my dad would want me to make.
> 
> ...


From my personal experience, one may not be asked about the PD immediately, especially if trying to rush for an ambulance. I was asked during the emergencies if I had the legal paper work, but was told I didn’t have to show it while making those decision because they were time sensitive. However, I did have to show the paperwork after the immediate urgency. Also, if the person does recover but needs longer care plans, you will need to produce the PD.


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## AltaRed (Jun 8, 2009)

A personal directive was highly important late 2021 with a dear and near family member with Stage 4 cancer who went into cardiac arrest. The attending paramedics asked a number of times whether she had PD with a DNR (do not resuscitate). We looked high and low for it and some time later after ambulance transport to hospital, I found it and took it to Emerg. It allowed the attending physician and family to align quickly with a consensus decision to 'pull the plug' according to her wishes. It would have been an agonizing decision/discussion otherwise.

Don't underestimate the value of such documents.


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## Plugging Along (Jan 3, 2011)

Beaver101 said:


> ^ Usually "disagreements" there is not within the family but between the family and doctor(s).
> 
> Doctors say "pull the plug" ('cause they know best and get to free up a bed) versus the family who says "no, not yet".


Not necessarily If the PD says "no, not yet', then it's not yet. We went through a similar scenario with my mom. After we were told she had hours, maybe days, or week to live, we were told that we should reduce all medical treatment just to comfort care for her remaining quality of life (so no more meds for diabetes, blood pressure ect). We said no, we still wanted to have the other medical care (minus a few things) instead of comfort. The medical staff didn't think it was necessary, but followed our wishes. That was 3 years ago, and she is still alive. 

The reason the PD is so important is if the person designates someone, but other family members do not agree, the PD has the final say. IA PD is also important if the closest 'next of kin' wouldn't be in the best frame of mind to make the decisions. In the case with my parents, instead of having the spouse be the PD, the responsibility went to the kids. The reason was my parents (well one of them) would get really over whelmed at such decisions and would panic. Instead, I am that person because I am usually pretty calm on these types of things and communicate with my parents and family to make the best choice. My parents didn't want emotion to rule when there was an emergency, so a PD is important on that. Even within my family, we have had some disagreements between my siblings and my dad and I have had to play to the mediator to figure out the course of action.


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## Plugging Along (Jan 3, 2011)

AltaRed said:


> A personal directive was highly important late 2021 with a dear and near family member with Stage 4 cancer who went into cardiac arrest. The attending paramedics asked a number of times whether she had PD with a DNR (do not resuscitate). We looked high and low for it and some time later after ambulance transport to hospital, I found it and took it to Emerg. It allowed the attending physician and family to align quickly with a consensus decision to 'pull the plug' according to her wishes. It would have been an agonizing decision/discussion otherwise.
> 
> Don't underestimate the value of such documents.


I am so thankful that my parents had all of this set up years ago, and kept communicating with the kids. Though I didn't really want to deal with the thought of taking over, if we didn't have these documents there would have been so much more trouble.


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## sags (May 15, 2010)

I have had 5 major operations in the last 17 years and all they asked for was the next of kin or contact person.

Numerous calls to paramedics and never asked for anything except for symptoms and the meds I was taking.

Never been asked about documents in the ER either.

Now I am thinking they didn’t care what I wanted and didn’t ask.

It must be different laws out west.


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## Plugging Along (Jan 3, 2011)

sags said:


> I have had 5 major operations in the last 17 years and all they asked for was the next of kin or contact person.
> 
> Numerous calls to paramedics and never asked for anything except for symptoms and the meds I was taking.
> 
> ...


I think you are confused. if you are the patient, then you are essentially giving consent to them to contact the next of kin. Any one call call 911 for someone else and provide what ever information they know. The caller could just be a stranger witnessing someone in distress.

However, try getting information or making medical decisions for a patient when they are unable to provide consent, you will run into problems. They will generally provide information for immediate family without paper work. So your spouse and kids would have been able to get some information when you are in ER or surgery, but they usually ask if their is a pd if the patient cannot provide consent. If there is no PD, often the spouse then immediate family can make the decisions If they seem to be in agreement.


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## jargey3000 (Jan 25, 2011)

james4beach said:


> Thanks, these are good points. I should start looking into this.


take it from me....don't procrastinate on this!.....


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## Ponderling (Mar 1, 2013)

James says sorta: don't have a will, any dependants. I just assumed that if I died, the assets would go to my only immediate family members 

We are dealing with just this situation. 

SIL passed unexpectedly in Jan 2022. Took sign off and notarized by 3 sisters to let 4th just get the deceased's mail forwarded. 

Wife is working to be named trustee. Were able to cancel her cel phone, freeze her bank account and a few other things with death certificates. We are currently carrying the costs to cremate her and the memorial service, less $2500 CPP death benefit pay out. 

Filed the paperwork to be named trustee, again after lots of paperwork from other sisters and notary services in April 2022 after her head space cleared after the memorial service. We still await a reply. Hope to be able to get most things wrapped by Dec 2022. Things will drag into June 23 since a wee bit of income in Jan 2022 to file on. 

Should not have too much income tax to unscrew, but if we did, you can bet there would be gobs of interest owing by now. 

Things to ponder for those who think they have no need for a will. One would have made our our current situation go a whole lot more smoothly.


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## Beaver101 (Nov 14, 2011)

Plugging Along said:


> Not necessarily If the PD says "no, not yet', then it's not yet. We went through a similar scenario with my mom. After we were told she had hours, maybe days, or week to live, we were told that we should reduce all medical treatment just to comfort care for her remaining quality of life (so no more meds for diabetes, blood pressure ect). We said no, we still wanted to have the other medical care (minus a few things) instead of comfort. The medical staff didn't think it was necessary, but followed our wishes. That was 3 years ago, and she is still alive.
> 
> The reason the PD is so important is if the person designates someone, but other family members do not agree, the PD has the final say. IA PD is also important if the closest 'next of kin' wouldn't be in the best frame of mind to make the decisions. In the case with my parents, instead of having the spouse be the PD, the responsibility went to the kids. The reason was my parents (well one of them) would get really over whelmed at such decisions and would panic. Instead, I am that person because I am usually pretty calm on these types of things and communicate with my parents and family to make the best choice. My parents didn't want emotion to rule when there was an emergency, so a PD is important on that. Even within my family, we have had some disagreements between my siblings and my dad and I have had to play to the mediator to figure out the course of action.


 ... I gather you haven't read the news that the hospital (which represent the doctors or vice-versa) can ask the court to over-ride your PD.


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## AltaRed (Jun 8, 2009)

Plugging Along said:


> I think you are confused. if you are the patient, then you are essentially giving consent to them to contact the next of kin. Any one call call 911 for someone else and provide what ever information they know. The caller could just be a stranger witnessing someone in distress.
> 
> However, try getting information or making medical decisions for a patient when they are unable to provide consent, you will run into problems. They will generally provide information for immediate family without paper work. So your spouse and kids would have been able to get some information when you are in ER or surgery, but they usually ask if their is a pd if the patient cannot provide consent. If there is no PD, often the spouse then immediate family can make the decisions If they seem to be in agreement.


That is correct. The PD authorizes someone else to make the decision, but it also can (and most often does) state the individual's wishes, such as DNR. The DNR can also be part of a person's Will instead of a PD but that is more complicated. That is why many?most? provincial jurisdictions have the PD (for health decisions) as a separate document. It stands on its own merit without the peripheral distractions of a Will, etc.

If we didn't have a PD for our family member last Dec, it would have taken longer, with more angst, on the decision to 'pull the plug', albeit that would have been the ultimate decision taken anyway, if not by the family, by the medical profession in this instance. 

The PD has a lot more in it than just a DNR type decision. It includes giving someone the authority to move that person to assisted living, hospice, change in living quarters if they are a danger to themselves in their own home, etc. Even to change provincial location to provide better advocacy/oversight for that individual. Everyone should have a PD and it needs to be thought through about how one would prefer events to unfold and who* is entrusted to make those decisions.

* The who likely should be one person as primary to avoid 'standoffs' that could end up in court, but can include other people (close friend or other family members) that have to be consulted in the decision. My PD includes my spouse and my adult children in the overall hierarchy.


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## sags (May 15, 2010)

With my dad, I made the decision to not have brain surgery performed when the doctors explained what the results would be.

The hospital made the decisions to move him to ICU, and then a hospital bed. I made the decision to move him to a hospital closer to my sisters.

Then my sister's took over making the decisions to move him to an end of life hospice.

My sisters made the decision to provide sufficient medication for him to remain pain free.

As trustee of his will I managed his estate after he passed away.

It was 6 months, involved several family members making decisions, and nobody ever asked to see a PD for legal authority to do so.

That was our experience. Others may have different experiences. I suspect a lot of people don't bother and the system just deals with it.

*We got an updated will, PD, and POA last year, and I highly recommend it. It cost $700 for everything for both of us.*


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## james4beach (Nov 15, 2012)

Ponderling said:


> One would have made our our current situation go a whole lot more smoothly.


I'm curious, which parts of your experience would have been made simpler by a will? In either case, one has to deal with lots of paperwork, try to close bank accounts, etc.


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## Ponderling (Mar 1, 2013)

Could have been a named trustee via a valid will.

Then life insurance of about $25K would have been able to be paid into a trustee account we could have set up pronto.
At present the $25K is in insurance co hands awaiting us being able to set up a trustee account. 

Also could have dealt with getting investments sold, and any term deposits not auto rolled over that will otherwise draw out how long it will take to wrap up her affairs.


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## latebuyer (Nov 15, 2015)

In my case as a single person, i am having a hard time deciding how to divide the money in my will. I have 2 sisters each with 2 kids but one is 6 years younger and one is 2 years older. So what do i do if my older sister dies first and i’ve split the amount in 1/2? Do i give it to my nieces? On the other hand, i’ve often thought my little sister may not have enough to retire on in which case would i give her that portion. I would call that a socialist will and i’m not entirely in favour of that. As long as i’m indecisive i will have no will and it goes to my parents. My dad was a lawyer and he can handle it although he would hate it. Maybe what would be best but strange for a 50 year old is to make a will and make my parents the beneficiary.


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## jargey3000 (Jan 25, 2011)

m3s said:


> Did you fix those windows yet


gonna get at it this week, I think....😉


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## AltaRed (Jun 8, 2009)

latebuyer said:


> In my case as a single person, i am having a hard time deciding how to divide the money in my will. I have 2 sisters each with 2 kids but one is 6 years younger and one is 2 years older. So what do i do if my older sister dies first and i’ve split the amount in 1/2? Do i give it to my nieces? On the other hand, i’ve often thought my little sister may not have enough to retire on in which case would i give her that portion. I would call that a socialist will and i’m not entirely in favour of that. As long as i’m indecisive i will have no will and it goes to my parents. My dad was a lawyer and he can handle it although he would hate it. Maybe what would be best but strange for a 50 year old is to make a will and make my parents the beneficiary.


I think it is a travesty you haven't got the right documentation in place. Why create havoc among the survivors? A conventional Will would include a clause that says if one or your beneficiaries pre-deceases you, that person's share would then pass to that person's children in equal amounts. Generally in keeping with family harmony, one would provide to your 2 sisters in equal amounts if both are physically and mentally competent. Anything else can become a wedge issue between the beneficiaries. Age has little to do with adjusting allocations (in the case of capable and competent adult beneficiaries).


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## latebuyer (Nov 15, 2015)

I think it does matter as it seems like i am favoring the 2 nieces who get a larger share. The other 2 may not even get anything if their mother spent the money in her lifetime or they’d get the money later. Thats not fair. Good to know that is the conventional way so thanks. In any event, like jargey and james4beach i’ll make a will when i’m ready. It may depend on the circumstances at that time. If sisters are comfortable i may leave it all to the nieces as i know how nice it is to be a beneficiary when you are young.


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## Raggedy Dandy (Mar 12, 2020)

latebuyer said:


> I think it does matter as it seems like i am favoring the 2 nieces who get a larger share. The other 2 may not even get anything if their mother spent the money in her lifetime or they’d get the money later. Thats not fair. Good to know that is the conventional way so thanks. In any event, like jargey and james4beach i’ll make a will when i’m ready. It may depend on the circumstances at that time. If sisters are comfortable i may leave it all to the nieces as i know how nice it is to be a beneficiary when you are young.


Not sure I follow the math of the nieces getting a larger share?

Step 1 - Sisters at 50% each
Step 2 - One sister pre-decease, so Sister2 at 50%, surviving nieces at 25% each.

Anything beyond that is just playing what-if, which you can't really plan around. 

EDIT - reread your later post about leaving more to Sis2, re: retirement funds. I see what you're saying now; it would be your call as to how to make the division. Plenty of others have already commented on the family politics of that, which I will quite happily stay out of  It does sound like you have some competing decisions to make - i.e. spilt between sisters vs ensuring some is left to the kids. That's tricky. Another possibility is a further division - Sis1, Kids1, Sis2, Kids2 (in whichever proportions make sense to you, eg, 25/25 for each family, so 12.5 for each kid), or 66% for sisters, remainder equal between the kids, whatever.

Leaving it straight to the nieces could also get complicated depending on the amounts we are talking about, and if they are minors (trusts, etc). However, if you're not sure of the younger sister's ability to manage it and leave some for the kids, that may be your best bet. Once it's left directly to her, it's hers to do as she wants.

You say "when I'm ready". Just keep in mind that the idiot driving home after the raging bachelor party isn't particularly concerned about your timeline.


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## latebuyer (Nov 15, 2015)

Thank you. Is what you are suggesting that i give more to my second sister but then i increase the amounts i give to the nieces if my older sister predeceases me? That may seem more fair. To be honest my older sister seems healthier and she may outlive me anyways. I have considered asking my younger sister to be executor so it seems a little awkward to change my mind. But i've also considered a trust company. Does anyone have experience with that?


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## AltaRed (Jun 8, 2009)

I know you were not fond of my views per prior post but quite frankly, any mathematical model you come up can change in a heartbeat if anything happens to any of your siblings and/or nieces/nephews, whether it be life or death or some over major life event. Are you going to change your Will each time there is an 'event' in your family? On what basis and in what proportions are you going to make that judgement?

In my opinion, the ultimate fairness model from the testator's viewpoint is equality on a monetary basis. No one has a legitimate complaint or wonder who bought your favoritism and how. I know I would leave 50/50 to the sisters with a clause that, in the event, any of them pre-decease me, their share goes in equal shares to their biological children. Good families will make their own adjustments after your body is cold if they think someone needs more than the other.

My mother left her estate 50/50 to myself and my bro. I didn't need the money, so I passed on my share in equal amounts to my adult children. It gave me the opportunity to make that decision rather than my mother pre-judging and bypassing me altogether in favor of my children.

I have no experience with trust companies but they are an option, albeit more expensive, if there is no one particularly competent in your near circle to probate your Will. I think I may have mentioned somewhere that the person you choose as Executor does not actually have to know much about Estate law and practices. They need to be conscientious, organized and take their responsibility seriously. They can hire all the expertise they need when they need it. They can't be the type to freeze like a 'deer in the headlights' and hope it will go away.


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## like_to_retire (Oct 9, 2016)

AltaRed said:


> I know I would leave 50/50 to the sisters with a clause that, in the event, any of them pre-decease me, their share goes in equal shares to their biological children.


Exactly, and this was my initial thought, and it's just that simple.

ltr


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## GreatLaker (Mar 23, 2014)

There is a concept in estate law of Per Stirpes vs Per Capita, which the testator can specify in a will. Per capita means each individual is given an equal share and per stirpes means that each branch of the family is given an equal share. With per capita, if a branch of a family has more offspring, that branch will get a larger share of the estate, whereas with per stirpes, each branch will get the same amount

Say you have no spouse and no kids. You have two sisters, one with 3 daughters and one with one son. You leave your estate to the two sisters. They predecease you, then you die without updating the will. Per capita means each of the 4 nieces and nephews will get will get 25% of the estate. Per stirpes means the one sister's daughters will split 50% equally among them, and the other sister's son gets the remaining 50%. That may seem unfair that the nephew gets 50%. But consider if the sister with the 3 daughters passed away, then you died, and the sister with the one son was still alive. Per capita means the remaining sister would get 25% and each the nieces would get 25%. That may seem unfair since 75% of the estate would go to the deceased sister's family branch and only 25% would go to the remaining sister. How fair is it that one sister's family branch gets 75% and the other sister's family branch only gets 25%, just because they had fewer kids. 

Something to really think about when deciding how to distribute an estate. My discussions with two estate lawyers indicated that per stirpes is more common since it seems more fair that each family branch gets the same amount, regardless of how many offspring they have.

And now I will wait for Mukhang pera to either offer kudos or tear my legal analysis apart.


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## AltaRed (Jun 8, 2009)

Per stirpes is the methodology in all the Wills I have seen and what we have in our own Wills. It is a personal choice how many kids a sibling or an adult child has, not mine to make judgement on or compensate for. I'd like to hear MP's take on the various themes he has seen.


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## GreatLaker (Mar 23, 2014)

GreatLaker said:


> Something to really think about when deciding how to distribute an estate. My discussions with two estate lawyers indicated that per stirpes is more common since it seems more fair that each family branch gets the same amount, regardless of how many offspring they have.


Now consider a more stark example. You have two daughters, each of whom have 4 children. You will your estate equally to them and to their offspring if they predecease you, per capita, plus a condition that no part of the estate goes to anyone that is not a blood relative, i.e. not to the husbands. 

You die while both daughters are still alive, so each daughter gets 50% of the estate. Now in another scenario, one daughter predeceases you, then you die. Under per capita rules, each beneficiary gets an equal amount. So the remaining daughter gets 20% of the estate, and four grand kids (of the deceased daughter) each get 20%. So just because one daughter died, the living daughter's share gets reduced from 50% to 20%. Maybe not what you envisioned.


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## AltaRed (Jun 8, 2009)

Now let's say the OP says... I will just change my Will every time a beneficiary dies. In this example of someone with two daughters with 4 children each, that anomaly could be fixed with a Will revision. But what happens if you and one of the daughters are traveling together for some reason on a dark, windy, rainy night and both are wiped out in an auto accident? Or what if one becomes incompetent before one of the 2 daughters pre-deceases you? It is too late to change one's Will at that point.

There are many scenarios that can unfold. Don't leave it to rolling of the dice.


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## GreatLaker (Mar 23, 2014)

james4beach said:


> I'm curious, which parts of your experience would have been made simpler by a will? In either case, one has to deal with lots of paperwork, try to close bank accounts, etc.


Without a will, the process to get the executor (application for certification of estate trustee in Ontario) is longer, and an estate trustee must be named since there is no will to specify them. The estate is in limbo until that gets done, and it may be hard to access assets necessary to pay bills etc. Any POA for property is immediately void when a person dies. Family members may be miffed if the executor that gets appointed is not who they think the deceased would have wanted. A good estate lawyer can recommend ways to avoid disagreements, uncertainty and conflict that may result from the lack of a will.


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## latebuyer (Nov 15, 2015)

Thanks. I had to reread about the stirpas and capitas. Off topic, but i think my aunt contested my grandma's will because my dad had 3 kids and she had 1 and we each individuals got an equal amount. Sorry but despite comments i'm not sold on split recommended. As my nieces get older, its harder to keep in touch with them. I don't think i want to leave a large amount of money to someone i rarely talk to. I'd prefer to give them each a token amount and roll over the share from 1 sister to another. Thanks for helping me crystallize my thoughts. Maybe i'll see what my dad thinks. To me it makes perfect sense you'd give money to a sister over a niece.


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## Raggedy Dandy (Mar 12, 2020)

GreatLaker said:


> ...per stirpes is more common since it seems more fair that each family branch gets the same amount, regardless of how many offspring they have.


And depending on the age of the person preparing the will, you have no input to how many individuals may end up being involved (e.g. grandparents when grandchildren are still potentially coming, or when divorces and remarriages happen, etc.)


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## Plugging Along (Jan 3, 2011)

latebuyer said:


> Thanks. I had to reread about the stirpas and capitas. Off topic, but i think my aunt contested my grandma's will because my dad had 3 kids and she had 1 and we each individuals got an equal amount. Sorry but despite comments i'm not sold on split recommended. As my nieces get older, its harder to keep in touch with them. I don't think i want to leave a large amount of money to someone i rarely talk to. I'd prefer to give them each a token amount and roll over the share from 1 sister to another. Thanks for helping me crystallize my thoughts. Maybe i'll see what my dad thinks. To me it makes perfect sense you'd give money to a sister over a niece.


My parents have always been very upfront with their finances and inheritances etc. They told us that if any sibling tried to contest their will, they would have a stipulation that that person would get nothing, and that person's share would be split among other two siblings. We were raised to value family over money ALWAYS. It would have killed my parents if we ever fought about money. Every family dynamic is different which is why wills are always cookie cutter.

A side note: if you want your younger sister to have more, and be the executor, you can also prescribe up to a 5% rate to settle your estate. It is taxable to her too.


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## Gator13 (Jan 5, 2020)

Another way to do it is to assign units to to each person in your will. For example, you could leave 50 units to each of your sisters and 10 units to each of their kids. That would be 140 units in total. You can stipulate that if anyone predeceases you, their units are cancelled. The remaining units automatically increase in value.


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## londoncalling (Sep 17, 2011)

Plugging Along said:


> They told us that if any sibling tried to contest their will, they would have a stipulation that that person would get nothing, and that person's share would be split among other two siblings.


Does such an inclusion negate one's right to contest the will?


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## Plugging Along (Jan 3, 2011)

londoncalling said:


> Does such an inclusion negate one's right to contest the will?


I believe that was the intent. I am not sure the exact wording. Our parents talked to us about it, made it a clear expectation. None of us are like that, so maybe it's moot. I don't know how it would hold up in court though.


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## londoncalling (Sep 17, 2011)

Plugging Along said:


> I believe that was the intent. I am not sure the exact wording. Our parents talked to us about it, made it a clear expectation. None of us are like that, so maybe it's moot. I don't know how it would hold up in court though.


Clear expectations and conformance to those wishes is one thing. Your parents did a good job in instilling the right values if it is a moot point. I was more interested in the actual legal ramifications than intent. Hopefully, someone with better knowledge of the law than I will weigh in.


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## Plugging Along (Jan 3, 2011)

londoncalling said:


> Clear expectations and conformance to those wishes is one thing. Your parents did a good job in instilling the right values if it is a moot point. I was more interested in the actual legal ramifications than intent. Hopefully, someone with better knowledge of the law than I will weigh in.


I am not sure about the legality, as that will never be tested. I have heard my older siblings who also have considerable estates telling their kids the same thing. Again, I see it's moot with my nieces and nephews, but hopefully would not even have to test the legality of it. 

I do remember it being a discussion point many years again, but I was pretty young. 

I wonder if @Mukhang pera could weigh in on if there is legal way to write a will that makes it that anyone who contests it because they are being greedy to not get anything.


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## Mukhang pera (Feb 26, 2016)

Plugging Along said:


> ...
> I wonder if @Mukhang pera could weigh in on if there is legal way to write a will that makes it that anyone who contests it because they are being greedy to not get anything.


I would expect some uniformity across Canada but, to be sure, in British Columbia, the courts will not enforce a clause in a will seeking to sabotage any attempt to contest the will. Such provisions are viewed as being against public policy. There are a number of authorities of which I am aware, but I think reference to 2 case authorities will suffice to illustrate the point:

_Bellinger v. Nuytten Estate __S.C., Hood J., 2003 BCSC 563, Doc. Vancouver A971813, April 14, 2003 • R. Trevor Todd, ; for plaintiff R.; J.P. Hamilton for defendant daughter and granddaughter; Lynn C. Waterman, ; for defendant P.; Brian M. Legge, ; for estate._

[16] His Lordship then went on to deal with the final issue, whether the clause was contrary to public policy. He concluded that it was, following the reasoning in an Australian case, *Re: Gaynor,* [1960] V.R. 640 (S.C.) wherein a similar clause was found by Mr. Justice O’Bryan to be void because it was imposed _in terrorem_ and also because it was opposed to public policy. In this regard I need only quote the following passage from Mr. Justice Lander’s decision at p. 323:
It cannot be denied with respect that the intent of the Legislature in creating the *Wills Variation Act,* is to ensure adequate maintenance and support for specified individuals. It is a matter of public policy that support and maintenance be provided for those defined individuals and it would be contrary to such policy to allow a Testator to circumvent the provisions of the *Wills Variation Act* by the creation of such as para. 9.

_Jung v. Poole Estate __S.C., G.P. Weatherill J., 2021 BCSC 623, Kelowna S121533, April 7, 2021 , 23pp. • David S.R. Burgess, for plaintiffs; Oliver Hui, for defendants._

[53] Messrs. Sabiston and Toombs both deposed in their respective examinations for discovery that, despite the fact that they are the sole beneficiaries in the Second Will, they feel a moral obligation to strenuously oppose the Twins’ s. 60 application because of the Deceased’s comments in it. It is worth noting that a provision in a will that revokes a benefit to a child who seeks to vary it, is void as against public policy: Bellinger v. Nuytten Estate, 2003 BCSC 563; Ketcham v. Walton, 2012 BCSC 175. As the executors of the Deceased’s estate, they are required to remain neutral. It is, therefore, disingenuous of them to suggest they are strenuously contesting this action on the basis of a “moral” obligation to the Deceased, as that obligation is void.


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## twa2w (Mar 5, 2016)

"_There is a concept in estate law of Per Stirpes vs Per Capita, which the testator can specify in a will. Per capita means each individual is given an equal share and per stirpes means that each branch of the family is given an equal share. With per capita, if a branch of a family has more offspring, that branch will get a larger share of the estate, whereas with per stirpes, each branch will get the same amount"_

Close but not completely correct.
If you have two children and give each child 50% of your estate per stirpes, and one child predeceases you, that child's share would go to their offspring or offsprings offspring in equal shares. (equal shares per level of succession from the inheritor above- if that makes sense) 

If you have two children and give each 50% share, per capita, and one predeceases you, that child's family gets nothing. It would all revert to the living child. This is rarely used for obvious reasons.

There may be more nuances depending on the wording of the will potentially.

Some other notes. 
Usually best to allocate by %. or shares. Unwise to use $ amounts unless token amounts to friends. Also unwise to split it by assets as these can change in value - particularly RSP/RIF's etc and taxes on RSP/RIFs are paid from the estate, not the RIF.

You likely cannot exclude adopted children - they can contest it based on it being against public policy. I don't have any case law handy.

You may include a memorandum of wishes clause. This is simply a clause in the will that says, if you should find a memorandum regarding personal effects attached to my will, I request my executor honour it.
The memorandum then would say: If the following items are in my possession at my death, I wish them to be distributed as follows; Then list the items and who they go to, date it and sign it. Easy to change, amend etc and keep the most recent copy with the will.

If you have young children and want to suggest a guardian, you should put a clause that the proposed guardian's expenses for confirming guardianship with the courts be paid by the estate.


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## jlunfirst (1 mo ago)

latebuyer said:


> In my case as a single person, i am having a hard time deciding how to divide the money in my will. I have 2 sisters each with 2 kids but one is 6 years younger and one is 2 years older. So what do i do if my older sister dies first and i’ve split the amount in 1/2? Do i give it to my nieces? On the other hand, i’ve often thought my little sister may not have enough to retire on in which case would i give her that portion. I would call that a socialist will and i’m not entirely in favour of that. As long as i’m indecisive i will have no will and it goes to my parents. My dad was a lawyer and he can handle it although he would hate it. Maybe what would be best but strange for a 50 year old is to make a will and make my parents the beneficiary.


Nothing wrong with making parents a beneficiary. So if one of them dies, then that portion be divided amongst siblings /their kids. Make it equal portions for the children. For the little sister,you might consider 1 of your bank accounts deemed for her, outside of your estate, so the others won't struggle over and she will get a little extra because she does need a bit more.


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## ian (Jun 18, 2016)

Our last will re-write was five years ago. It was different from the preceeding version done 9 years prior to it.

We know today that we will be making changes to that will when we update it sometime within the next 5 years.


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## AltaRed (Jun 8, 2009)

jlunfirst said:


> Nothing wrong with making parents a beneficiary. So if one of them dies, then that portion be divided amongst siblings /their kids. Make it equal portions for the children. For the little sister,you might consider 1 of your bank accounts deemed for her, outside of your estate, so the others won't struggle over and she will get a little extra because she does need a bit more.


That is not the way to actually word the clauses. If each of the parents is a 50% beneficiary, then if one of them dies, one could use the Per Stirpes clause as Twa2w already said for their offspring, or if preferred that deceased parent's siblings (in the absence of the testator having any siblings him/herself). 

If the case where a testator wants to leave something extra for a sibling (e.g. disadvantaged or in need), simply proportion the estate that way, e.g. 10% more of the residual of the estate. Leaving a separate bank account doesn't work because there may be no such bank account in 5 years, or it may be depleted, and in any event, any such bank account would need to be JTWROS with that sibling to bypass the estate.to begin with along with a letter in the Estate file saying this sibling is intended to be a beneficiary of the JTWROS account and not just JTWROS for operational convenience/efficiency. 

As we have discussed in other threads, this latter point is important for elderly parents where they might make one of their offspring a JTWROS co-owner of their accounts for operational purposes, but not for estate beneficial purposes. It is a source of conflict and there is case law on such matters where that offspring who is a co-owner of the accounts tries to claim the contents solely for him/herself. Avoid it with clear instructions in the estate file OR with the financial institution that the co-owner does not have beneficial interest.


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