# If You Don't Have a Will, You WILL Have Problems



## The Financial Blogger

This is one of my favorite post this week and I found it very interesting. This subject is almost taboo but I think we should discuss it. Making a will is something very emotional and we all tend to avoid the time where it should be a priority... Still it is part of our financial accomplishment.

Please read it and let us know what you think about having a will.


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## Sustainable PF

The Financial Blogger said:


> This is one of my favorite post this week and I found it very interesting. This subject is almost taboo but I think we should discuss it. Making a will is something very emotional and we all tend to avoid the time where it should be a priority... Still it is part of our financial accomplishment.
> 
> Please read it and let us know what you think about having a will.


I liked the article too. Included in our first Friday Links post on our newly launched blog.


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## the-royal-mail

I generally don't click links (due to all the advertising/spyware/malware etc that seems to await) but will be happy to discuss in this forum.

I do agree - it's only in recent times when a will became more important for my situation. Might be worth the $1000 (?) or so to talk to a laywer and get it done properly. Young people tend not to think of it, but as you accumulate assets and savings, who really knows what happens after someone dies?


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## Wealthy1Day

This is an excellent article! Short, concise, to the point, and informative.

I'm 33 and don't have a will yet. While I'm sure I'd go into high gear to get one if I was married and/or had dependents, so far it has only been "in the back of my mind" as a result of reading The Wealthy Barber a couple of years ago and taking a greater interest in my overall finances and future. 

But I really should get on it as it's true that while we may never really even consider it until our later years, it's a need as early as legal age. We just have so many other focuses during our earlier years, especially when there are no dependents. I bought a condo pre-construction. By then, it will be even more important that I have a will written.

My question is about lawyers... outside of a real estate lawyer who my RE agent connected me with, how does one go about seeking lawyers whether it be for wills, employment, etc.? As easy as it may be to do a Google search, I can't help but think that there must be a more sophisticated approach to finding and hiring one. Or is there, really? Seeking out lawyers for anything is new to me.


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## Four Pillars

Wealthy1Day said:


> This is an excellent article! Short, concise, to the point, and informative.
> 
> I'm 33 and don't have a will yet. While I'm sure I'd go into high gear to get one if I was married and/or had dependents, so far it has only been "in the back of my mind" as a result of reading The Wealthy Barber a couple of years ago and taking a greater interest in my overall finances and future.
> 
> But I really should get on it as it's true that while we may never really even consider it until our later years, it's a need as early as legal age. We just have so many other focuses during our earlier years, especially when there are no dependents. I bought a condo pre-construction. By then, it will be even more important that I have a will written.
> 
> My question is about lawyers... outside of a real estate lawyer who my RE agent connected me with, how does one go about seeking lawyers whether it be for wills, employment, etc.? As easy as it may be to do a Google search, I can't help but think that there must be a more sophisticated approach to finding and hiring one. Or is there, really? Seeking out lawyers for anything is new to me.


We used our real estate lawyer to do our will.


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## Wealthy1Day

Rightly or wrongly, I just used the RE lawyer referred to me by my agent. While I've only spoke with him on the phone, I felt confident dealing with him. But he's also north of the city in Markham (I live in Toronto) so I can't see myself taking any trips up there and, in fact, had my agent do all the physical dealings. 

He specializes in RE law and in speaking with people, it seems it might have been best to seek out a lawyer with a general practice and as such would both close RE deals and write wills. Apparantly, working with a lawyer who specializes costs more which makes sense, but isn't necessarily practical unless working on complicated RE deals. I was quoted $1,300. My sense is that for a Toronto condo that is a reasonable rate. But I wonder how much it would cost if I found a lawyer in Toronto to close the deal and also write a will.


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## The Financial Blogger

Wealthy1Day said:


> This is an excellent article! Short, concise, to the point, and informative.
> 
> I'm 33 and don't have a will yet. While I'm sure I'd go into high gear to get one if I was married and/or had dependents, so far it has only been "in the back of my mind" as a result of reading The Wealthy Barber a couple of years ago and taking a greater interest in my overall finances and future.
> 
> But I really should get on it as it's true that while we may never really even consider it until our later years, it's a need as early as legal age. We just have so many other focuses during our earlier years, especially when there are no dependents. I bought a condo pre-construction. By then, it will be even more important that I have a will written.
> 
> My question is about lawyers... outside of a real estate lawyer who my RE agent connected me with, how does one go about seeking lawyers whether it be for wills, employment, etc.? As easy as it may be to do a Google search, I can't help but think that there must be a more sophisticated approach to finding and hiring one. Or is there, really? Seeking out lawyers for anything is new to me.


I guess your real estate lawyer could be a good person. I tend to work with references in those sort of matters. Ask your family/friends, persons who live close to you and could refer you someone they trust. You could also search for notary's or real estate lawyer's associations or professionals in a Chamber of Commerce near you.


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## The Financial Blogger

Sustainable PF said:


> I liked the article too. Included in our first Friday Links post on our newly launched blog.


Thank's a lot!


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## The Financial Blogger

the-royal-mail said:


> I generally don't click links (due to all the advertising/spyware/malware etc that seems to await) but will be happy to discuss in this forum.
> 
> I do agree - it's only in recent times when a will became more important for my situation. Might be worth the $1000 (?) or so to talk to a laywer and get it done properly. Young people tend not to think of it, but as you accumulate assets and savings, who really knows what happens after someone dies?


Regarding your comment, _When_ do you guys feel it is more important to have a will? What are the criterias making it a priority for you or not?


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## Sustainable PF

The Financial Blogger said:


> Thank's a lot!


My pleasure - the article was one of the top 12 I read this week from the 65 or so sites I get feeds from.


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## the-royal-mail

The Financial Blogger said:


> Regarding your comment, _When_ do you guys feel it is more important to have a will? What are the criterias making it a priority for you or not?


I don't have an answer to that excellent question, so I too would be interested in reading as many opinions as possible.


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## Sustainable PF

The Financial Blogger said:


> Regarding your comment, _When_ do you guys feel it is more important to have a will? What are the criterias making it a priority for you or not?


When you get married or have a kid you should get a will. If you have assets that you want to ensure are allocated where you want them allocated, you should have a will.


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## NorthernRaven

If you are married, or especially with kids, or have complicated assets or beneficiaries, then it would seem wise to go straight to a lawyer. But it would be interesting to know with certainty under what, if any, circumstances the better will-kit type of things are sufficient. The basic case would be single, no spouse or equivalent or ex, no children, no real estate, one beneficiary who is also executor, and a backup beneficiary and executor. This sort of case would handle many folks, but there doesn't seem to be any sort of authoritative review of the will-kits as to their suitability. Or for that matter, much indication of the cost of a basic will such as this from lawyers in various areas.


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## The Financial Blogger

NorthernRaven said:


> If you are married, or especially with kids, or have complicated assets or beneficiaries, then it would seem wise to go straight to a lawyer. But it would be interesting to know with certainty under what, if any, circumstances the better will-kit type of things are sufficient. The basic case would be single, no spouse or equivalent or ex, no children, no real estate, one beneficiary who is also executor, and a backup beneficiary and executor. This sort of case would handle many folks, but there doesn't seem to be any sort of authoritative review of the will-kits as to their suitability. Or for that matter, much indication of the cost of a basic will such as this from lawyers in various areas.


In my opinion, will-kits are very basic as it can't ask you the right questions to make you think about what or who is really important to you after you leave. A lawyer will. Also, making a will is something that needs to be prepared, questionned over and over again and, most of all, legal. With the will-kit type, the risk to forget something important legally is very high. So I would recommend consulting but a will-kit might be enough for someone who is not married, has no child, has not a large family and has a low net worth.
As for indication of cost, persons I spoke to spent between $500 and $1500 depending of the area (mainly in Québec and Ontario).


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## loggedout

The title of this thread is wrong....I will not have problems if I don't have a will, my loved ones, if I have any, will have problems.


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## Karen

Based on my experience of having been executor of the wills of my mother, my sister, and two deceased husbands, I strongly recommend having a will, whether you have much in the way of assets or not. I came across a few situations where a will was needed, even though most of mine and my husbands' assets were in joint names. For example, while dealing with final income tax returns, CRA and the IRS (in the case of my American husband) refused to deal with me or accept my signature as executor without receiving a copy of a will. There were several other instances where I had to provide a copy of the will in order to prove that I was the executor and thus was authorized to wind up their affairs. If these people had not had wills, I would have had to go to court and been appointed their representative, which have ended up costing a lot more money than it would have cost them to prepare a will.

Every province has different laws concerning what happens to an estate if a person dies intestate and that can lead to some unintended consequences. For example, suppose a married couple with no will and no children are killed simultaneously in a car accident. In BC, if there is no way to determine which of them died first, the law assumes that the oldest died first, let's say the husband. The couple's assets, therefore, would be deemed to have passed on to the younger spouse, the wife in this case, and then on to her family members. The older spouse's family would get nothing.

I know that's an unlikely occurrence, but it's far from an impossible one. I'm a firm believer in everyone having a will, whether you think you need one or not.


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## humble_pie

yes get a will drawn. Better yet, get a lawyer-drawn will.

re the simultaneous death by accident of a married couple. Solicitors routinely insert boilerplate providing that, in such a case, the estate will pass directly to the next level of beneficiaries. As i recall it's known as the 30-day survivorship clause, although the time period is sometimes extended to 60 or 90 days, in case one of the 2 spice survives such a bad accident for a brief period but remains in a coma.

another reason for the same lawyer to draw wills for both parties in a couple at the same time.


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## kcowan

I think the problem is the uncertainty. In order to decide when you need a will, you need a lawyer to assess the complexity of your situation. My Mom did not have a will, and when she died of cancer, Dad had to jump through hoops to get her estate settled.

My brother had a very simple estate, but the will just made it easier.

The big problem with getting an early will is that maintenance is a big issue.

I have never used a will kit so cannot comment.


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## heyjude

Years ago when my situation was pretty simple, I bought a will kit to see if it would do the job. Pretty soon I realized that it was just a PDF document with my name on it, and that I had very little opportunity to customize it. I didn't think it was worth the price of the kit.

Then I bought a house and had a local lawyer draw up my will for the first time. He was a friend of a friend and charged me only $25. It looked OK to me. 

Later on, my situation became more complex, I used my bank's estate planning service and set up a foundation. The bank provided a list of lawyers they trust and I chose one. She cost megabucks, but she really knew her stuff. She also pointed out the pitfalls of the original will drawn up by the local lawyer.....which would have resulted in an outcome that I did not want. 

I guess you get what you pay for.


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## Jungle

Make sure you tell your executor and family exactly where your will is. No use in having a will if you've hidden it where no one can find it and didn't tell anyone where it is.


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## Cal

the-royal-mail said:


> I generally don't click links (due to all the advertising/spyware/malware etc that seems to await) but will be happy to discuss in this forum.
> 
> I do agree - it's only in recent times when a will became more important for my situation. Might be worth the $1000 (?) or so to talk to a laywer and get it done properly. Young people tend not to think of it, but as you accumulate assets and savings, who really knows what happens after someone dies?


My will cost less than $250. Depending upon your situation, it may not be that complicated or expensive.


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## the-royal-mail

Can you not give them a photocopy of the will?


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## Cal

the-royal-mail said:


> Can you not give them a photocopy of the will?


Not sure who you mean by them....but in my case, I have a photocopy, executors have photocopy, lawyer has original in safe.


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## the-royal-mail

Yep that's what I meant. Basically, I feel that all concerned should have a copy.

Otherwise, just imagine trying to get access to one's dwelling after they've died and the will is somewhere inside. Need these documents.


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## Taxsaver

I had my will done two months ago. It's about time that I mail copies to my family members! All I need are stamps. I don't have any family here in Toronto, so if something should happen to me, I'm not sure how long it would take to them to find out I passed away. I don't even think any of my family members have my most recent address. That's pretty stupid of me. I'm going to take care of this ASAP.

It would be stupid to keep a will at home and not make copies available to others. Imagine you die in a house fire and the will also burns. Nothing left.


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## Guest

I'd say if a person has any concern for survivors, a will is in order ... and just to add, there's powers of attorney, just as imortant imo, perhaps even more so, as they pertain to me in the here and now 

The will. I'm remarried, we both have children and so not a plain vanilla situation ... that's where the lawyers knowledge and experience comes in ... cost ... $100 (in 1988).

Powers of attorney. If I'm unable to make health or financial decisions, I prefer a family member do that for me ... cost $25 each health/financial.

As mentioned, that will was done up in 1988 ... with 1/2 my pension going to my wife, I really should update that will leaving a little more to the "kids".


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## Taxsaver

Will and power of attorney for $550 including taxes for me in 2010. I'm single.


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## The Financial Blogger

loggedout said:


> The title of this thread is wrong....I will not have problems if I don't have a will, my loved ones, if I have any, will have problems.


Very much true!


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## The Financial Blogger

the-royal-mail said:


> Yep that's what I meant. Basically, I feel that all concerned should have a copy.
> 
> Otherwise, just imagine trying to get access to one's dwelling after they've died and the will is somewhere inside. Need these documents.


Yes, a copy of the will to those concerned is necessary! Or at least tell them the situation and where they can find copies if needed.


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## Wealthy1Day

How much do Toronto lawyers charge for a will, in general?

I'm single with no dependents. I don't have many assets except some investments and I've purchased a condo pre-construction. While I don't have any dependents, I think it will be best if I have a will drawn up so that I can choose who inherits the condo.

Now my question in terms of costs goes beyond the initial drawing of a will. Should I get married and have kids, what are the charges to update the will?


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## kcowan

Wealthy1Day said:


> Now my question in terms of costs goes beyond the initial drawing of a will. Should I get married and have kids, what are the charges to update the will?


Yes maintenance is what will bite you in the wallet. It boils down to how much pain is there compared to how much gain.

When I entered my common law relationship, I decided that it was worth the pain. We have not updated it but we did specify some things that would be decided by separate direction in a letter. For example, we have an amount of $25k that goes to whoever takes on our pets. This person has changed several times and that never requires a lawyer. In another 10 years it might be redundant. So it makes sense to exclude things in the will that are likely to change regularly.


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## humble_pie

i don't know the situation in the jurisdiction where kcowan is domiciled - where his will will be probated - but there is a whale of a difference between bequeathing the residue of one's estate to one's wife & children - even if they are still only notional future wives & children - and leaving a small legacy to those who will care for one's pets.

in eastern canada, modifications to a will can only be made by a lawyer-drawn document called a codicil. These are less expensive than wills, being smaller documents. Typically, they instruct that a certain article or sub-section of an article in an existing will be deleted and replaced by a new article that is set forth in the codicil. A typical example would be an article or sub-section dealing with individual legacies or charitable bequests. New legatees can be established by means of a codicil.

a memorandum or letter written & signed by a testator would never be binding upon a will's executor. Only a codicil modifying an existing signed will would be binding. One might imagine and hope that a memorandum requesting that reasonable funds be provided to a pet caretaker would be respected. But suppose such a memorandum would specify an outrageous amount for pet care, for example $250k. An heir named in the will to inherit the residue of the estate would probably succeed in enforcing the will & ignoring the terms of such a handwritten memorandum, if he chose.

turning now to wealthyoneday, quite reasonably he wants a one-size-fits-all forever will. But imho it's too soon in wealthy's life to be able to successfully peer into the future & provide for his future possible family. Wealthy might marry a succession of wives, father numerous children and multitudes of grandchildren across a span of decades.

wealthy, could i ask you this. Isn't the transmission of the DNA worth popping the extra thousand bucks or so for a 2nd will once you marry & start begetting offspring. Theoretically speaking, you could have a simple will drawn up now to suit your present bachelor circumstances. Then after the wife arrives, you could have a codicil drawn up that would change the provisions for the residue of your estate.

the foregoing arrangement might work for an initial change of marital status. But once there are real children in the picture, all sorts of auxiliary matters should be treated in a will, like who should be named as the tutor or guardian of the minor children if both the testator and his wife should die.

if it were myself, upon the birth of one or more children, i would want an entirely new will to be drawn to reflect the new circumstances. I would not want those important life changes to be handled by a mere codicil only. And i would never, ever try to deal with any aspect of my children's lives with any kind of fuzzy, non-binding personal memorandum or letter.


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## Karen

I don't know if this applies in all provinces, but for British Columbians it's important to know that in this province a marriage nullifies an existing will unless the will specifically states that it was made in contemplation of the marriage. So if you marry here and don't make a new will, you will be considered to have died intestate.


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## Toronto.gal

Interesting, but I wonder if every judge would have arrived at the same conclusion.

the will did not meet “contemporary moral standards.”

Read more: http://www.nationalpost.com/news/Su...+inheritance/3912164/story.html#ixzz16tNKcDIL


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## Racer

Neat post Toronto.gal - British Columbia's legislation is very focused on those who are left behind, rather than the wishes of the testator. If you are curious, I found the actual judgment, which has all of the dry analysis and juicy details: http://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc1678/2010bcsc1678.html.

Enjoy!


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## Toronto.gal

Thank you Racer, I read it all and found it very sad. Too bad the father did not soften up a little towards the end, not even at 86.


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## kcowan

Racer said:


> British Columbia's legislation is very focused on those who are left behind, rather than the wishes of the testator.


So a will is important but it better be fair or it will be overturned in BC.


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## Karen

A lawyer that I worked for years ago explained it this way - he said that BC is the only jurisdiction in Canada where adult children do not necessarily have to prove financial need in order to successfully challenge a parent's will.


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## Toronto.gal

Yes, as I read, only in BC are adult children allowed to challenge a will under the Wills Variation Act. 

I believe in the 'moral obligation' a parent has to his adult children and vice-versa & not sure why this law is not the same in all provinces. I'm not saying leaving it all to them as healthy adults have to fend for themselves , but $400K++ to one child [who apparently cared for the father just to inherit all] and $0.00 to the others is just too cruel [if testimony was true]. A spouse can't be completely disinherited, why then children?

I would think in the majority of the cases, the hurt of the disinherited children goes beyond the monetary issue. A BC lawyer said: "I see lots of cases like that, where the children are damaged goods. What a lot of these cases are is the last kick at you from the grave, the last insult."


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## kcowan

One provision in BC is that everyone named in the will gets a copy of it during probate. This had the effect that all DWs cousins were copied because the will said that, in the event DW predeceased her, the estate was to be divided equally between the surviving cousins. This had an unexpected positive effect among the cousins even though they inherited nothing directly.


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## bean438

Toronto.gal said:


> Yes, as I read, only in BC are adult children allowed to challenge a will under the Wills Variation Act.
> 
> I believe in the 'moral obligation' a parent has to his adult children and vice-versa & not sure why this law is not the same in all provinces. I'm not saying leaving it all to them as healthy adults have to fend for themselves , but $400K++ to one child [who apparently cared for the father just to inherit all] and $0.00 to the others is just too cruel [if testimony was true]. A spouse can't be completely disinherited, why then children?
> 
> I would think in the majority of the cases, the hurt of the disinherited children goes beyond the monetary issue. A BC lawyer said: "I see lots of cases like that, where the children are damaged goods. What a lot of these cases are is the last kick at you from the grave, the last insult."


I disagree. My estate is MINE, and I can do with it as I please.

Why go to the expense of a lawyer, only to have a judge (also a lawyer at one point) to over turn it?

Disgusting.

Moral obligation to adult children? Nonsense.

You were given life, and a set of wings.

I can see if someone dies with a surviving spouse, and dependant children having a will over turned if everything was left to a charity.

But if I have kids that I havent seen in 40 years, and one kid who looked after me while dyeing, It is my right to leave everything to that child, and that child only.

WHat the hell is wrong with BC? Sounds very wrong.


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## kcowan

bean438 said:


> ...WHat the hell is wrong with BC? Sounds very wrong.


Well the courts have the right to overturn the will. But it has to be egregious. My MIL died and left her estate to DW. A brother had become estranged 18 years before. We had to hire a detective to find him because it is BC. He did. But the court ruled that he was indeed estranged and deserved nothing.

We have made provision for him in spite of that. But at least the court was reasonable. And it was nice for DW to be reunited with him after all those years. Without the law, we would not have hired a "skip-tracer" to try and find him.


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## bean438

The courts should not have the right to over turn a will. 

My estate, my choice, period. 

Why pay legal fees to do a will if some jerk off ex lawyer judge can overturn it? 

Corruption if you ask me. 

Only if I am jeprodizing a dependant child or spouse can the courts over turn. 

But if one of my kids is an ******* and the other wasn't then again, my estate, my choice. 

Even if one gets 400k and the other not a dime, too bad so sad. 

My estate, my choice.


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## plen

bean438 said:


> The courts should not have the right to over turn a will.
> 
> ...
> 
> Only if I am jeprodizing a dependant child or spouse can the courts over turn.


Well which is it? 

And what do you define as jeopardizing a dependant?


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## bean438

It is just as i say.

Dependant child or spouse have to be looked after.

Adult children? Nope.


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## The Financial Blogger

bean438 said:


> It is just as i say.
> 
> Dependant child or spouse have to be looked after.
> 
> Adult children? Nope.


I am guessing it must not be common that a judge over turn a will? 
Also, you talk about an adult children who's being a pain but they are also parent's being some kind of idiot and taking advantage of their children. In this case, I think it might be justified for a child to go to court and ask the judge to over turn the will... Not all parents love equally their children even when they "deserve" it.


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## bean438

I would like to think a will is overturned very rarely.

Undue influence, not of sound mind, etc.

But just because what I choose is not fair? Come on.

Warren Buffet is giving away most of his wealth to charity. Is that fair to his kids? Too bad, its his money and his choice.

Lets look at this another way:

One kid is a dick, and drug addict. The other took care of you, but since you treat your kids equally you split your estate 50/50.

Is it fair for a judge to overturn that because the loser kid will shoot his inheritance up his arm, and give it all to the "good" child?

I dont think so. My estate, my choice.

Why make up a will if that is not the case?


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## The Financial Blogger

bean438 said:


> I would like to think a will is overturned very rarely.
> 
> Undue influence, not of sound mind, etc.
> 
> But just because what I choose is not fair? Come on.
> 
> Warren Buffet is giving away most of his wealth to charity. Is that fair to his kids? Too bad, its his money and his choice.
> 
> Lets look at this another way:
> 
> One kid is a dick, and drug addict. The other took care of you, but since you treat your kids equally you split your estate 50/50.
> 
> Is it fair for a judge to overturn that because the loser kid will shoot his inheritance up his arm, and give it all to the "good" child?
> 
> I dont think so. My estate, my choice.
> 
> Why make up a will if that is not the case?


I understand your point, but I think making a will is still worth it since I am sure those situations are very rare. Most of the time, some persons can be frustrated about the decisions the person who passed away made but will still live with it. 

I know quite a few persons who made their will regarding their children needs instead of dividing it all equally. From what I heard, they all accepted it well since they were aware of their brother/sister's situation. I think the key is also talking about it to your relatives, at least the ones concerned with the will. Therefore it gives time to accept it or discuss it in order to make changes if the person feels the need to.


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## Racer

When you pay a lawyer for a will, you are actually paying him for 2 separate things: to draft a will according to your instructions, and to provide you with relevant advice about their will (including whether your will is subject to challenge).

I don't know anything about BC law re: wills, except what I've read and heard, but it seems to be an anomaly among the provinces because that legislation is so aggressive. I personally don't like the BC legislation, because although the outcome of that one case might be just and compassionate (that father sounded like a class-A jerk), people depend on the law to be rational and predictable. In my opinion, a family member who is not financially dependent on the testator at the time of death should not be entitled to encroach on the provisions of the will. Until the legal system is fixed, and lawyers become affordable/fast/available, legislation should not encourage or reward litigation unless there is genuine financial need -- even if it means depriving those poor girls of an opportunity to stop their crazy father's manipulations from the grave. 

People ask to draft wills that are subject to challenge on a fairly regular basis. 

For example, it comes up a lot in rural estates, when title to a matrimonial farmland is held in the husband's name only, and he wants to leave the land to his son -- who is usually actively farming the land. This would leave the surviving wife destitute. I can usually talk them out of it, but not always. 

Each time, I explain there is a law that will prevent this will from being upheld by a court, and how they can avoid that risk. I always follow up with a reporting letter that states this, too.

I always ask "scoop" questions (a list of about 30 questions) at the end of the interview, to elicit issues that may not have come up -- 

do you have any immediate family members we haven't talked about already,
have you given up children for adoption, 
do you have any disabled relatives,
are there are dependent minors that we haven't talked about already, 
do you own assets in other provinces or another country, 
does anyone in their family get cheques from an oil company,
etc, etc 
That helps ensure I understand the relevant issues, and also protects me from a disgruntled beneficiary's later claim that I was professionally negligence for not asking the right questions (this happens more often than you might think). 

So for most provinces, if you are one of those people who gives will instructions to a solicitor for a will that is likely to be overturned, then that's usually known in advance. If it is a surprise, then the laws may have changed (which is why I say, in writing, that a person should update their will every 5 years). If that's not the case, then sue the lawyer and see what happens!

In the case of the father who used his will as a way of continue his emotionally abusive ways -- we'll never know if his lawyer advised that BC law would interfere with that. The claim against the solicitor's professional negligence insurance policy may not be publicly reported. But I would think that claim/lawsuit was almost certainly considered for a case like this, in addition to the challenge to the will.


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## humble_pie

some people need an internet executor as well as a conventional executor of their last will & testament.

when people create virtual properties such as photos, videos, blogs, articles, novels, letters, games & other memorabilia, it takes a special kind of talent to find all of these properties, let alone transfer them to their rightful heirs or else wind them up. The typical executor of an estate doesn't usully have this talent. Enter the internet executor.

is he or she a lawyer or at least a paralegal ? No. At least not yet. My dog could call itself an internet executor if it wanted to. So there's room for improvement. Maybe internet executor is an emerging profession.

i have come across one case in which an American artist passed away from cancer, leaving a beautiful website for whose continued existence she had paid until 2012. Not long after her death the hosting company was sold to a bigger one in the UK, which in turn put the individual websites up for sale. Some were stolen or hacked. Soon the artist's family began hearing from a lithuanian hijacker who, in broken english, demanded money for upkeep & development of their own website, which they thought they'd inherited.

the family refused to pay but couldn't afford to hire a lawyer with genuine internet experience, since this sector of jurisprudence is still in its infancy & experienced lawyers are few in number & expensive. The hacker threatened to destroy the website, i believe it was down for a period of time. With typical rural American gumption - they're farm people in wisconsin - the family, using the original code, launched a new website at a different address. The blackmail demands dwindled, then stopped. Both websites continue today in a kind of tense truce, but it's easy to observe that the lithuanian version is breaking down since the pirate's english is rudimentary and he has no new material for updates.

meanwhile the artist's family & friends are maintaining their own version of the original website quite beautifully. The late artist was a strong community leader, so a number of people are happy to contribute, in her honour, to the hosting cost. A good internet executor, though, would have spared this family a great deal of the hassle they went through.


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## kcowan

humble_pie said:


> A good internet executor, though, would have spared this family a great deal of the hassle they went through.


It would also be nice for a post on all forums indicating the death and plans - I have seen this a few times where the NOK has posted.

Also good to post a notice to update mailing list updates. Often this is a manual step by everyone who knew the person.


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## MoneyGal

bean438 said:


> I disagree. My estate is MINE, and I can do with it as I please.


At the risk of getting shot or flamed (or whatever the Internet equivalent is), it seems to me that this is a logical impossibility. An estate only arises after you are dead, and I'm just not sure there's a way to retain possession of something after death. 

There IS an easy and foolproof way around this: don't leave an estate. If you want one kid to have more than another, give things to the favoured kid _while you are alive_. Then, if you like, annuitize the rest - you've now maximized income during your lifetime while leaving no pesky remainders to be divided up.


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## The Financial Blogger

Racer said:


> When you pay a lawyer for a will, you are actually paying him for 2 separate things: to draft a will according to your instructions, and to provide you with relevant advice about their will (including whether your will is subject to challenge).
> 
> I don't know anything about BC law re: wills, except what I've read and heard, but it seems to be an anomaly among the provinces because that legislation is so aggressive. I personally don't like the BC legislation, because although the outcome of that one case might be just and compassionate (that father sounded like a class-A jerk), people depend on the law to be rational and predictable. In my opinion, a family member who is not financially dependent on the testator at the time of death should not be entitled to encroach on the provisions of the will. Until the legal system is fixed, and lawyers become affordable/fast/available, legislation should not encourage or reward litigation unless there is genuine financial need -- even if it means depriving those poor girls of an opportunity to stop their crazy father's manipulations from the grave.
> 
> People ask to draft wills that are subject to challenge on a fairly regular basis.
> 
> For example, it comes up a lot in rural estates, when title to a matrimonial farmland is held in the husband's name only, and he wants to leave the land to his son -- who is usually actively farming the land. This would leave the surviving wife destitute. I can usually talk them out of it, but not always.
> 
> Each time, I explain there is a law that will prevent this will from being upheld by a court, and how they can avoid that risk. I always follow up with a reporting letter that states this, too.
> 
> I always ask "scoop" questions (a list of about 30 questions) at the end of the interview, to elicit issues that may not have come up --
> 
> do you have any immediate family members we haven't talked about already,
> have you given up children for adoption,
> do you have any disabled relatives,
> are there are dependent minors that we haven't talked about already,
> do you own assets in other provinces or another country,
> does anyone in their family get cheques from an oil company,
> etc, etc
> That helps ensure I understand the relevant issues, and also protects me from a disgruntled beneficiary's later claim that I was professionally negligence for not asking the right questions (this happens more often than you might think).
> 
> So for most provinces, if you are one of those people who gives will instructions to a solicitor for a will that is likely to be overturned, then that's usually known in advance. If it is a surprise, then the laws may have changed (which is why I say, in writing, that a person should update their will every 5 years). If that's not the case, then sue the lawyer and see what happens!
> 
> In the case of the father who used his will as a way of continue his emotionally abusive ways -- we'll never know if his lawyer advised that BC law would interfere with that. The claim against the solicitor's professional negligence insurance policy may not be publicly reported. But I would think that claim/lawsuit was almost certainly considered for a case like this, in addition to the challenge to the will.


Very helpful adding! Thank you!


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## bean438

MoneyGal said:


> At the risk of getting shot or flamed (or whatever the Internet equivalent is), it seems to me that this is a logical impossibility. An estate only arises after you are dead, and I'm just not sure there's a way to retain possession of something after death.
> 
> There IS an easy and foolproof way around this: don't leave an estate. If you want one kid to have more than another, give things to the favoured kid _while you are alive_. Then, if you like, annuitize the rest - you've now maximized income during your lifetime while leaving no pesky remainders to be divided up.


Yes you dont own anything after you are dead, but that is the whole point of a will.

Leaving nothing in an estate is what my parents are doing. Every time my dad buys a new house/car/trip etc, he jokes "how do you like your inheritence?" 

Good for him. He worked hard all his life and he deserves to spend his money on himself.

I know people who get mad when their elderly parents splurge on a big ticket item because it "why do they need such an expensive car?"

Excuse me? It's not your money.


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## kcowan

bean438 said:


> Excuse me? It's not your money.


Amen Bro. They can spend it on lottery tickets or in the casino or on a trip. More power to them!

Live well! Die broke!


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## OhGreatGuru

Racer said:


> Neat post Toronto.gal - British Columbia's legislation is very focused on those who are left behind, rather than the wishes of the testator. If you are curious, I found the actual judgment, which has all of the dry analysis and juicy details: http://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc1678/2010bcsc1678.html.
> 
> Enjoy!


Interesting. BC's law apparently changes the historical common law principle that one can distribute one's estate to anyone, as long as it is clear in the will that it was intended. On first glance I didn't think that was a good idea. It seems to me a court's opinion as to what is "fair" could end up being just as arbitrary as a parent's. But I would be interested is hearing if anyone knows why this law was passed originally. I have a suspicion it was done because BC was having problems with wills that were glaringly discriminatory, particularly on gender gounds. And this particular case seems to be an example of that.

Also in defense of this particular case, there were a number of underlying irregularities in the will and estate management. eg: "_Based on the evidence I find that the testator father in disinheriting his daughters did not act judiciously as a parent. *His reasons for disinheriting his daughters were untrue and irrational.* .... _"

Furthermore, the judge found that the will, and the son as executor, had left a lot of valuable property out of the estate when fling for probate. This suggests the court suspected the father and son of conspiring to deliberately defraud both the government and other potential beneficiaries. Maybe the judge's unstated reason for splitting the estate was to prevent the son from getting away with this.

PS. Notwithstanding the common law principle, I believe there is a societal expectation (contemporary moral standards?) that children should be treated fairly/equally except where there are extenuating circumstances (eg. financial need; compensation for care; estrangement; etc.)


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## Belizean Beach Bum

*Our Problem*

Hello,

I have first hand experience with the BC Wills Variation Act...

My mother had a very simple one page Will which divided her estate (which had been left to her by my dad) between her other son (my half-brother) and myself. As soon as mother passed away, another son/half-brother crawled out of the wood pile claiming one third of mother's estate. Our lawyer recommended that we settle out of court as a judge could agree with his claim and if we lost, then we would be responsible for all court costs. We settled out of court for $100K which I thought was a very nice gift for someone I have never met.

Now here is the current situation...

I am currently married with 3 loving adult children from previous marriages. My wife has 2 adult children who disowned her when she got tired of being a punching bag for her ex-husband. If my wife dies first, then our estate goes to my three kids which is what we all want. If I die first, then she can still try to leave everything to my kids; but her kids can still file for a variation. We can hire the best lawyers out there to draw up our Wills; but THERE IS ABSOLUTELY NOTHING we can do to guarantee that her kids can't hire better lawyers, or get a sympathetic judge to rule in their favour.

I suggest that our problem is not that uncommon and that the distribution of assets to loved ones should not be left up to Wills.


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## Racer

Hi Belizean Beach Bum,

I remember your story from elsewhere in the forum -- I'm sorry that happened to your family. Not very fair at all. 

You could consider speaking to a experienced BC solicitor who can discuss the different estate planning options for your situation. For example, options that others have chosen, based on their particular circumstances and after weighing the advantages and disadvantages, include setting up a secret trust, setting up a living trust, executing promissory notes or contracts to allow your kids to become "creditors" of your estate, or placing assets in joint accounts with the children and sending the child a gift letter confirming that you wish to pass the right of survivorship to the joint account, and so on. 

Not every lawyer can help you with this, so you may have to do some hunting for a solicitor who is a good fit for your special needs, but there are solutions out there.

The biggest risk in wills, I think, is not the issues you know about, because those can be addressed, or at least minimized. The biggest risk is the issue you don't see coming.


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## Karen

Belizean Beach Bum said:


> Hello,
> 
> I have first hand experience with the BC Wills Variation Act...
> 
> My mother had a very simple one page Will which divided her estate (which had been left to her by my dad) between her other son (my half-brother) and myself. As soon as mother passed away, another son/half-brother crawled out of the wood pile claiming one third of mother's estate. Our lawyer recommended that we settle out of court as a judge could agree with his claim and if we lost, then we would be responsible for all court costs. We settled out of court for $100K which I thought was a very nice gift for someone I have never met.
> 
> Now here is the current situation...
> 
> I am currently married with 3 loving adult children from previous marriages. My wife has 2 adult children who disowned her when she got tired of being a punching bag for her ex-husband. If my wife dies first, then our estate goes to my three kids which is what we all want. If I die first, then she can still try to leave everything to my kids; but her kids can still file for a variation. We can hire the best lawyers out there to draw up our Wills; but THERE IS ABSOLUTELY NOTHING we can do to guarantee that her kids can't hire better lawyers, or get a sympathetic judge to rule in their favour.
> 
> I suggest that our problem is not that uncommon and that the distribution of assets to loved ones should not be left up to Wills.


Bezilian Beach Bum is absolutely right; many people who posted comments on this issue have assumed that a judge varying the terms of a will in BC is rare; it is not, according to my lawyer. It's just a matter of proving that you are a child of the deceased unless there are extenuating circumstances. My lawyer made the comment that it's much more difficult to disinherit a child in this province than in other Canadian provinces.

The reason my late husband and I were discussing this with our lawyer is that the issue arose when we were making new wills following our marriage. I had far greater assets than my husband did; he had a good income, but he had almost no assets as he had given most of what he owned to his ex-wife at the time of their divorce. My will stated that everything I owned was to be divided three ways between my husband and my two daughters if I died first. His will left everything to me if he predeceased me, but (and this where a problem might have arisen) it stated that if I died first then his assets would go, not to his children, but to mine. We explained the reason for this to the lawyer - the fact that any assets he had following my death would have been inherited from me so should go rightfully to my children. Our lawyer said that it was important to put a clause in the will explaining the reasons that his children were not named as his heirs. He inserted a clause in my husband's will that said, in part, "I direct my Trustee that I have not left any portion of my estate to my children [names]. This has nothing to do with my regard for them. I love them all; however all of the capital assets of my estate have been principally derived from my wife [name] and have been brought into our marriage by my wife...." The lawyer warned us that there could be no guarantee that a judge would not still overrule my husband's stated wishes, but at least he/she would consider the reasons should my husband's children challenge the will. He said that, without that explanation being in the will, his children would almost certainly win a share of their father's estate if they chose to challenge his will.

Sorry for the rather involved explanation, but I thought some of you might be interested in another example of how the laws of inheritance work in BC.


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## Racer

Karen,

That perspective is very sound; although legislation in other provinces uses different (much more narrow) criteria for when the provisions of the will can be changed, generally the standard approach for avoiding legislation is to employ a Statement of Intention. Its purpose is to explain the directions of the will in such a way as to 1) convince a beneficiary not to make a challenge under the legislation, and 2) convince a judge not to change the distribution of the estate if a beneficiary does make a challenge and the other beneficiaries can't agree to an out-of-court settlement.

There are other estate planning options, however, that are available to people who have special needs - they may be particularly motivated to disinherit a person who they anticipate will make a challenge, or they may have a sizable net worth that makes additional legal fees feasible.

The options I mentioned above are all strategies that involve preventing the property from becoming a distributable part of the estate -- none of which I am recommending in any way; this is for discussion purposes only.

A will distributes solely-owned property that is "left over" after paying creditors and taxes. 

By making property jointly owned (which is not as easy as it sounds in certain cases, especially with property that is jointly owned by a parent and a child, rather than 2 spouses), that property does not even enter the estate in the first place. It's the same with life insurance proceeds. 

Before any gifts may be made to dependents (and non-dependent children in BC, I guess), or named-beneficiaries, creditors must first be paid back. So some kinds of debt arrangements can be created for estate planning purposes, such as private mortgages, promissory notes, etc, accompanied by a written agreement that observes certain formalities. This is a complicated area, as governments and courts are keen to spot people who attempt to evade paying probate fees and taxes. 

The trusts I mentioned are very complex and would cost a fair bit in fees. I'm not very familiar with them myself, as I'm still in the early part of my career. I only know one practitioner who offers these kinds of services; most of the time, work like this would be referred out to a firm that specializes only in trust law (and although I hate to say it, some practitioners may be reluctant to identify it as an option, since that would mean referring business to another firm). There may also be maintenance fees from a financial institution/ trustee as well, depending on what is set up. 

So this only really comes up when the clients have the means, needs, and motivation to spend thousands more on estate planning than the average client. But options other than a Statement of Intention do exist to help a person maximize their control over their property.


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## Karen

Racer,

I hope you didn't think that I was questioning you in any way - I had been planning to post what I did for several days when I first noticed people expressing their view that they were sure it was rare in BC for a judge to vary a will - I just hadn't got around to posting yet and by the time I did, you had posted your information, which I found very helpful and interesting.

I always enjoy your posts; you say you're still in the early stages of your career, but you are obviously very knowledgeable, and I appreciate your sharing your knowledge with us.


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## humble_pie

lol who knew we were such a lot of dotty, batty, gouty peers cogitating how to bequeath or not bequeath our manor houses & our vast domains to our rotten, shiftless, quarrelsome, scheming heirs.

racer this is a dumb question but there are lots of 2nd even 3rd spouses whom a testator may not wish to benefit outright because the assets might or could or would then pass out of the bloodline to the children of the 2nd or the 3rd. This is true in all provinces not just bc.

my Q is what is wrong with a simple testamentary trust. Income for life to the 2nd or 3rd spouse; no encroachment on capital; upon his or her death distribution to the children or grandchildren of the testator.

it's true that a professional trustee should probably be named in case it might be difficult to maintain an even hand. Fees could be substantial. Might there be a simple low-fee version for a modest estate ... possibly these might be the circumstances that give rise to the utilization of insurance policies.


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## Toronto.gal

Racer said:


> By making property jointly owned (which is not as easy as it sounds in certain cases, especially with property that is jointly owned by a parent and a child, rather than 2 spouses), that property does not even enter the estate in the first place. It's the same with life insurance proceeds.


This thread and particularly Racer's interesting comments made me want to learn more about our laws and so I went to the library and got the book *"The Complete Idiot's Guide to Estate Planning in Six Simple Steps for Canadians."* 

As you mentioned, joint property ownership avoids probate as this would automatically transfer under 'survivorship rights', but indeed as you also noted, there are dangers involved with this set-up. The book mentioned the *dangers* of such joint ownerships with children & listed 5 terrible D's:

"Death, divorce, debts, disasters, disposition" & explained the potential problems that could occur under each category.

A great book for someone with basic or no knowledge at all about wills, taxes & applicable laws. I definitely learned a handful of important facts that I had not been aware of before I read the book. 

As an example, I wonder how many people are aware about RRSP's rollover option. The case discussed in the book, involved a husband, who had left his RRSP's to his sister and not his wife, and in so doing, the available rollover option and ability to defer taxes had been completely lost as his sister had been required by law, to report all as 'income' and hence pay a hefty tax bill of around 50%. One could assume that most likely that had not been the intention of the husband, but done in error as a result of not having been informed by his lawyer about the tax consequence of leaving it to anyone other than his spouse or a dependent child. I had NOT been aware that dependent children qualified for RRSP rollover. Makes one wonder if all lawyers are up to date, with respect to existing as well as changing legislation, so it is important to read & to ask questions!

Interesting views offered here; someone mentioned Buffett gave 'most' of his fortune away, true, however, he did not leave his children with $0.00. IMHO [and I know you don't all agree], his belief of 'leaving them enough to do anything, but not enough to do nothing' is fair & wise indeed!


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## Toronto.gal

humble_pie said:


> lol who knew we were such a lot of dotty, batty, gouty peers cogitating how to bequeath or not bequeath our manor houses & our vast domains to our rotten, shiftless, quarrelsome, scheming heirs.


Lol!!!!!!!!


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## Racer

Karen - no, not at all. I thought you would like to know the back story of statements of intention. Thanks for the compliment, I appreciate that. The feeling is mutual! I love these little debates and discussions.

humble pie, ditto your concerns about the downsides of professional trustees. Yes, that testamentary trust with income to the current spouse for life with a gift over to another set of beneficiaries after the current spouse's death can be what is needed, but has some challenges:


is the income sufficient to maintain the spouse according to the lifestyle they maintained prior to the testator's death? It's hard to predict that. Needs/lifestyles may have changed by the time the testator passes, making a fixed distribution amount or a formula based on the trust capital inappropriate. Or the needs will change in the future as the current spouse ages or becomes infirm; hard to predict that, too. Usually there are time limitations on when you can make an application under the dependent's relief legislation. 

a family tree can change dramatically and unexpectedly over the course of the testator's lifetime after drafting the will, if there are a few car accidents and babies thrown in the mix. IMHO, the hardest wills are for family trees that are more horizontal (siblings, with a smattering of nieces and nephews) than vertical (kids and grandkids), and the out-of-pocket costs (ie, not necessarily fees) of administering those estates can become daunting. Sometimes it's a good idea to select a trusted younger relative (and a couple of alternates for good measure, if possible) to become the recipient of the residue (or in your scenario, the trust remainder) with a secret, non-binding letter on the testator's wishes re: distribution among the rest of the family. That is risky for the lawyer, though; the testator may word it, date it, and sign it -- and accidentally create a holograph will that revokes the formally drafted will.

toronto.gal -- yes, RDSP's have shaken up estate planning, and there is a lot of distrust among planners when it comes to those (relatively) new structures. There are restrictions on the rollover - not every disability entitles a disabled person to a RDSP, and not all RDSP's will have contribution room available for an inheritance. There are also issues with timing and government matches. Also, you want to stay flexible in case the rules (tax or estate law) change again before the testator passes. I don't provide tax advice - I only recognize a possible tax issue, advise of a need for tax advice, and the risks of not seeking the same. Ugh, even to me that sounds slippery! But it is a delicate and nuanced area. Mentioning a relative with a disability stops all other conversations until we have discussed further. 

humble - LOL! And estate law and tax law sometimes seem like having a bunch of aunties over for dinner who won't stop talking over each other. Stubborn old Mrs. Estates is set in her ways, and is always disagreeing with her arch nemesis, Mrs. Relief Legislation. Mrs. Tax won't stop nattering about being left out of things (and will whack you with her giant purse if she feels like it ). They have opinions on every little thing, and aren't very good at getting along with the younger relatives, like Mr. RDSP and Ms. TFSA, or their troublesome ward, W.W. Web, Jr, a carousing ne'er-do-well. 

Sorry for the whimsy  I'm off to top up my afternoon coffee with a touch more bailey's...


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## bean438

Toronto.gal said:


> This thread and particularly Racer's interesting comments made me want to learn more about our laws and so I went to the library and got the book *"The Complete Idiot's Guide to Estate Planning in Six Simple Steps for Canadians."*
> 
> As you mentioned, joint property ownership avoids probate as this would automatically transfer under 'survivorship rights', but indeed as you also noted, there are dangers involved with this set-up. The book mentioned the *dangers* of such joint ownerships with children & listed 5 terrible D's:
> 
> "Death, divorce, debts, disasters, disposition" & explained the potential problems that could occur under each category.
> 
> A great book for someone with basic or no knowledge at all about wills, taxes & applicable laws. I definitely learned a handful of important facts that I had not been aware of before I read the book.
> 
> As an example, I wonder how many people are aware about RRSP's rollover option. The case discussed in the book, involved a husband, who had left his RRSP's to his sister and not his wife, and in so doing, the available rollover option and ability to defer taxes had been completely lost as his sister had been required by law, to report all as 'income' and hence pay a hefty tax bill of around 50%. One could assume that most likely that had not been the intention of the husband, but done in error as a result of not having been informed by his lawyer about the tax consequence of leaving it to anyone other than his spouse or a dependent child. I had NOT been aware that dependent children qualified for RRSP rollover. Makes one wonder if all lawyers are up to date, with respect to existing as well as changing legislation, so it is important to read & to ask questions!
> 
> Interesting views offered here; someone mentioned Buffett gave 'most' of his fortune away, true, however, he did not leave his children with $0.00. IMHO [and I know you don't all agree], his belief of 'leaving them enough to do anything, but not enough to do nothing' is fair & wise indeed!


I was the one who mentioned Buffets estate mostly going to charity.

The whole point was not wether I think what he did was right or wrong. I have my opinions as to what I or people I know "should" do with their estates, but ultimately it is up to them, NOT some judge, or child, grandchild etc.


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## bean438

Karen said:


> Bezilian Beach Bum is absolutely right; many people who posted comments on this issue have assumed that a judge varying the terms of a will in BC is rare; it is not, according to my lawyer. It's just a matter of proving that you are a child of the deceased unless there are extenuating circumstances. My lawyer made the comment that it's much more difficult to disinherit a child in this province than in other Canadian provinces.
> 
> The reason my late husband and I were discussing this with our lawyer is that the issue arose when we were making new wills following our marriage. I had far greater assets than my husband did; he had a good income, but he had almost no assets as he had given most of what he owned to his ex-wife at the time of their divorce. My will stated that everything I owned was to be divided three ways between my husband and my two daughters if I died first. His will left everything to me if he predeceased me, but (and this where a problem might have arisen) it stated that if I died first then his assets would go, not to his children, but to mine. We explained the reason for this to the lawyer - the fact that any assets he had following my death would have been inherited from me so should go rightfully to my children. Our lawyer said that it was important to put a clause in the will explaining the reasons that his children were not named as his heirs. He inserted a clause in my husband's will that said, in part, "I direct my Trustee that I have not left any portion of my estate to my children [names]. This has nothing to do with my regard for them. I love them all; however all of the capital assets of my estate have been principally derived from my wife [name] and have been brought into our marriage by my wife...." The lawyer warned us that there could be no guarantee that a judge would not still overrule my husband's stated wishes, but at least he/she would consider the reasons should my husband's children challenge the will. He said that, without that explanation being in the will, his children would almost certainly win a share of their father's estate if they chose to challenge his will.
> 
> Sorry for the rather involved explanation, but I thought some of you might be interested in another example of how the laws of inheritance work in BC.


Karen, here is exactly my point:

In MY opinion should you die everything should go to your spouse regardless of who brought what into the marriage. 

But that is not for me to decide your affairs. Would you think it is fair if I were a judge to overturn that because of mine, or someone else's beliefs?

Someone mentioned some kind of "social expectation" of treating all children fairly. That is their belief, not mine so why should my esate be held up to the same "social expectation" that I dont belive in.

As for jointly held assets, bank accounts held jointly between an adult child and elderly parent are now (thanks to the supreme court of canada) are automatically assumed to be for convenience, and NOT a gift via "rights of survivorship".

This is for bank accounts so far but who knows it may grow to cover other things, i.e properties.


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## Karen

Bean,

I realize you have stressed that this is your opinion and that you don't expect everyone to conform to it, but I'm curious as to whether you're saying that in a case like mine, you believe that a spouse should inherit everything. My late husband Bill and I were married in our 60s and were married for only four years before he died of pancreatic cancer. I have two adult children from my first marriage. If I had done as you suggested and left everything to Bill and I had predeceased him, he would have inherited all my assets totalling approximately one million dollars and my children would have received nothing. Even though I know he wouldn't have allowed that to happen, that isn't the point - he would have been legally entitled to. There would have been nothing stopping him from leaving all my assets to his children when he died, and surely you agree that that would have been wrong.

I would agree with you with couples where there has been only one marriage, but it just isn't that simple when there are children from a previous marriage involved.

Re the matter of joint bank accounts, as long as you open the account as a joint account "with right of survivorship," it will automatically go to the other account holder in the case of your death.


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## bean438

Karen I am not saying what you did was right or wrong, but rather that it is a decision that you and your current spouse wish to do.

Personally I believe when you marry you become a partnership and everything should go to a surviving spouse. Is that right or wrong? Are you right or wrong?

I have no kids, you do. We all have different situations and make decisions for ourselves.

Who am I, or a judge, or your kids, or your current spouses kids to cry foul or unfair for what you want to do with your estate.

It is none of my business, just as my wishes are none of your, or anyone else's.

We all live our own lives, earn our own money, and ultimately decide what we want.

As for bank accounts held jointly, they used to transfer to the survivor upon death.

With an adult child and elderly parent and joint bank accounts, courts have ruled it is assumed to be held jointly in trust, unless specifically stated the account is to be left as a gift upon death.

It is reasonable to assume an adult child will do day to day banking for a parent with mobility issues.


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## Karen

bean438 said:


> Karen I am not saying what you did was right or wrong, but rather that it is a decision that you and your current spouse wish to do.
> 
> Personally I believe when you marry you become a partnership and everything should go to a surviving spouse. Is that right or wrong? Are you right or wrong?
> 
> I have no kids, you do. We all have different situations and make decisions for ourselves.
> 
> Who am I, or a judge, or your kids, or your current spouses kids to cry foul or unfair for what you want to do with your estate.
> 
> It is none of my business, just as my wishes are none of your, or anyone else's.
> 
> We all live our own lives, earn our own money, and ultimately decide what we want.
> 
> As for bank accounts held jointly, they used to transfer to the survivor upon death.
> 
> With an adult child and elderly parent and joint bank accounts, courts have ruled it is assumed to be held jointly in trust, unless specifically stated the account is to be left as a gift upon death.
> 
> It is reasonable to assume an adult child will do day to day banking for a parent with mobility issues.


While I understand your views, I think they're influenced by the fact that you don't have any children. I most definitely don't think that there would be any justification for the assets I have worked hard all my life to accumulate ending up in the hands of my husband's children from another marriage. I would expect my children to resent me deeply if I allowed that to happen.

I was aware of the changes to the situation re joint bank accounts, but I mentioned it because it's fairly recent, and I didn't know if everyone here is aware of it yet. I wasn't until a few months ago.

Interesting discussion!


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## Toronto.gal

Karen said:


> I most definitely don't think that there would be any justification for the assets I have worked hard all my life to accumulate ending up in the hands of my husband's children from another marriage. I would expect my children to resent me deeply if I allowed that to happen.


I completely agree with you Karen; you know you are right and that is all that matters! 

Leaving all to a spouse [regardless of length of marriage], and nothing to one's children [excluding extenuating circumstances] is just not right.


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## Karen

Thanks Toronto.gal - I'm glad you agree!


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## bean438

Toronto gal Karen is right and so am I. The important thing is that our wishes be carried out as we wanted them to be.

I admit not having kids changes my view. But really every situation is different.

I know a girl (39) who married a guy who is in his mid 60's. They have a new baby, and he has grown, adult independent children from his 1st marriage.

He left his estate to his new wife and new baby.

His adult children are furious that their inheritance is all going to "that gold digging *****", and their little step brother.

Excuse me? First of all its not an inheritance until your dad dies. Shame on you. Secondly do you expect him to die and leave an infant and dependant wife with nothing so you can get an inheritance?

These are fairly successful children, or so i thought. I guess law, and medicine dont pay that well?

Incidentally there was a small provision for each adult child, but i believe it was rescinded after the tantrums ceased.

Do I agree with your decision? Absolutely not. IMO in marriage whats mine is yours, and whats yours is mine. I dont think it is appropriate for Bill to have to hit the bricks and go back to work to buy his own home off your children.

Do I defend your decision, and your right to make that decision? Absolutely. 

I have read several books on estate issues. Yours is a common one with a solution. You can do a certain will (cant remember the name of it) in which you leave your estate to the surviving spouse with the stipulation that the residue of the estate go to the pre deceased spouse children upon death.

I suppose this can be circumvented by Bill giving away everything before he dies to his kids.

Karen I want to emphasize I am not dumping on you, and your decision.

My life is my life, and a spouse IMO is entitled to everything. You and I have different views. I dont agree with you, and toronto gal, and the both of you probably think i am nuts, but nobody has the right to tell me I cannot do something I want to do.

Blended famillies present all kinds of challenges. Another couple I know have a child to them selves, with the husband having 2 grown adult children.
They both brought in equally to the marriage. All 3 kids are grown, independent, and have children of their own.

They decided to leave everything to the one child they created together. At first I thought this was harsh but they really have nothing to do with the 2 "original kids" i.e no phone calls, no birthday cards, didnt give a **** when dad had prostate cancer, moved away etc. Their "own"daughter keeps in contact, was there for the both of them for the cancer scare, etc.

Their view is that if the 2 kids cant be bothered to send a birthday card, or even a phone call after dad almost died, then why should they see a dime?

I agree with them after getting the whole story. You may not agree. But its not our estate so we have no say in the matter.

BTW I am divorced, 39 with no kids and reasonable assets. I am not a millionaire, but if there are any "gold diggers" (silver diggers) out there, feel free to message me, lol.

Just be at least 18 years old, preferably a non smoker, be able to cook once in a while, and own your own car and fishing boat.
Please send picture of the boat!


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## Karen

I didn't go into detail in my earlier posts, Bean, but my will did provide for Bill to have had the right to remain in my house for his lifetime, but it would have gone to my children upon his death (if I had predeceased him). In his case, he probably wouldn't have taken advatage of that because he would have wanted to return to Alaska where he moved from to marry me and where his children live, but it would have been his choice. He had a good pension income and he could have bought a condo in Alaska with the third of my estate that he would have had. It was extremely important to me that he be looked after, but my will was drafted to ensure that he was looked after but so were my children. His former wife got almost all his assets so it is up to her to look after their children.

The one example you gave was a case where the children from the first marriage were not good to their father, but in my case, my kids are very good to me and were very fond of Bill. I think your examples could be considered exceptions to the rule, but in general I still think that Toronto.gal and I have the moral high ground.


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## Sustainable PF

If I am fully aware of our assets will an online kit work for me?


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## bean438

Thanks for sharing Karen. I didnt mean to pry, or specifically pick you out.

Again you think you have the moral high ground. Good for you. I would do things differently based on my life's current set up.

I may change my opinion if I had kids, or re married. Maybe not.

The main thing is that what is right for me may not be how you feel and vice versa and that nobody should be able to tell me or you what to do with our affairs.

I may not agree with what you say but I will defend your right to say it.


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## Karen

Okay Bean - we'll agree to disagree!


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## bean438

Absolutely Karen. It would be very boring if we all thought alike.


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## The Financial Blogger

Sustainable PF said:


> If I am fully aware of our assets will an online kit work for me?


I felt I needed an expert to make sure I do not forget anything and also that my intents are legal. As Racer said earlier in this thread, a lawyer can help you by asking a lot of questions such as :

"I always ask "scoop" questions (a list of about 30 questions) at the end of the interview, to elicit issues that may not have come up --

* do you have any immediate family members we haven't talked about already,
* have you given up children for adoption,
* do you have any disabled relatives,
* are there are dependent minors that we haven't talked about already,
* do you own assets in other provinces or another country,
* does anyone in their family get cheques from an oil company,
* etc, etc

That helps ensure I understand the relevant issues, and also protects me from a disgruntled beneficiary's later claim that I was professionally negligence for not asking the right questions (this happens more often than you might think)."

So if you think you can handle everything, than yes an online kit could be enough. But you might also realize there is no such place to add comment, remark or particular intents you might have.


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## Racer

Bean and Karen -- I just love it when everyone gets along!  

SustainablePF, another place to be wary of will kits is that the kit may not ensure that you follow the execution formalities for your jurisdiction. In my province, the part of the wills legislation that governs execution of wills is seriously flawed. 

For example: you are in a hospital waiting for a surgery. You type out your own will on a laptop and print it out. It is perfectly worded. You know that in Alberta, you must have two non-beneficiaries witness your signature. So you sign in front of one witness, who steps out into the hallway and asks a nearby nurse to be the second witness. She signs it too, while sitting at her desk. She comes in afterwards to give it back to you. You die in the surgery.

Can your will be overturned?

Yes. 

A challenge may not happen, but if it does, this will would fail. The beneficiaries must witness the testator's signature, _at the moment_ of signing -- all 3 people at the same time. There is no need to prove that the testator didn't intend for the provisions of the will to be carried, if there was a technical defect in the execution stage. A defect in execution would require a court to enforce the terms of an earlier will (even where that will gave everything to a now-divorced spouse ), or to enforce the default laws that handle the estates of people who die without wills. It is surprising how often a challenge is raised and emotionally justified -- "that woman doesn't deserve that much, because she didn't love them as much as I did", etc. People do the strangest things when dealing with shock and grief and money. It is disheartening, and it's made me fairly OCD when it comes to making sure that execution is by-the-book. Perhaps that will ease as I gain more experience.

I swear I am not trying to fearmonger here, but the world has become very savvy with handling self-drafted documents, but there are a few areas of law which remain unforgiving -- real estate and wills. I'm a huge fan of do-it-yourselfing, but not in those areas. It does make sense in one way -- these documents are used to transfer hundreds of thousands of dollars in property, money, or debt. It may not seem real, as with real estate, when the clients sign the papers at the bank -- but it feels real to me when I look at a trust account and there's half a million in mortgage proceeds sitting there, or when I send a cheque to the other side. 

And Bean, before you shoot the messenger, please remember that lawyers and judges must stay within the bounds of legislation that is passed by parliament. Can we please share some of the blame with politicians? They are the ones that drafted that loopy BC legislation, and have not yet updated the ultra-conservative AB legislation. Or the media, who covers the latest change to a new provision in the Criminal Code which will have zero effect on crime and/or sentencing, or voters who listen to promises and not actions...


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## humble_pie

racer i'm sure many people read this thread and benefited from all the insights offered, with yourself as the skilled leader & coach. Thank you so much.

a most cogent detail is your mentioning that both wills & real estate documentation transfer properties worth hundreds of thousands of dollars, and therefore they should be professionally drawn up & failure-free. I agree. It's absolutely worth spending the money.

to the moderators: perhaps this thread could be considered for a sticky ? I don't recall any other in the past year or two that dealt so well with last wills & testaments.


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## bean438

Racer said:


> Bean and Karen -- I just love it when everyone gets along!
> 
> SustainablePF, another place to be wary of will kits is that the kit may not ensure that you follow the execution formalities for your jurisdiction. In my province, the part of the wills legislation that governs execution of wills is seriously flawed.
> 
> For example: you are in a hospital waiting for a surgery. You type out your own will on a laptop and print it out. It is perfectly worded. You know that in Alberta, you must have two non-beneficiaries witness your signature. So you sign in front of one witness, who steps out into the hallway and asks a nearby nurse to be the second witness. She signs it too, while sitting at her desk. She comes in afterwards to give it back to you. You die in the surgery.
> 
> Can your will be overturned?
> 
> Yes.
> 
> A challenge may not happen, but if it does, this will would fail. The beneficiaries must witness the testator's signature, _at the moment_ of signing -- all 3 people at the same time. There is no need to prove that the testator didn't intend for the provisions of the will to be carried, if there was a technical defect in the execution stage. A defect in execution would require a court to enforce the terms of an earlier will (even where that will gave everything to a now-divorced spouse ), or to enforce the default laws that handle the estates of people who die without wills. It is surprising how often a challenge is raised and emotionally justified -- "that woman doesn't deserve that much, because she didn't love them as much as I did", etc. People do the strangest things when dealing with shock and grief and money. It is disheartening, and it's made me fairly OCD when it comes to making sure that execution is by-the-book. Perhaps that will ease as I gain more experience.
> 
> I swear I am not trying to fearmonger here, but the world has become very savvy with handling self-drafted documents, but there are a few areas of law which remain unforgiving -- real estate and wills. I'm a huge fan of do-it-yourselfing, but not in those areas. It does make sense in one way -- these documents are used to transfer hundreds of thousands of dollars in property, money, or debt. It may not seem real, as with real estate, when the clients sign the papers at the bank -- but it feels real to me when I look at a trust account and there's half a million in mortgage proceeds sitting there, or when I send a cheque to the other side.
> 
> And Bean, before you shoot the messenger, please remember that lawyers and judges must stay within the bounds of legislation that is passed by parliament. Can we please share some of the blame with politicians? They are the ones that drafted that loopy BC legislation, and have not yet updated the ultra-conservative AB legislation. Or the media, who covers the latest change to a new provision in the Criminal Code which will have zero effect on crime and/or sentencing, or voters who listen to promises and not actions...


I totally agree with that. Lawyers and judges sometimes have no choice in what they do. Politicians on the other hand do have a choice to change things and do not.

As for alberta, is it non beneficiaries or beneficiaries who must witness at the same time?
In one paragraph you say non beneficiaries and then you say beneficiaries.


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## Racer

Thanks humble!

And thank you, too, Bean!



> As for alberta, is it non beneficiaries or beneficiaries who must witness at the same time?
> In one paragraph you say non beneficiaries and then you say beneficiaries.


That was a typo -- both witnesses must be non-beneficiaries. Sorry about that - I should go back and correct. 

This formality was inherited by way of English law in the olden days, so I think it's the same with most provinces. When this law first came about, lawmakers were concerned when a person's will that was drawn up in another person's handwriting. Typewriters weren't in existence, much less computers or pre-packaged wills. 

In any case, provinces (some? all?) now require an additional document: an oath sworn by one of the witnesses that the formalities were followed to the letter. It's called a NC8 here. See http://www.qp.alberta.ca/documents/orders/orders_in_council/2009/1109/2009_550.html. This document accompanies a typewritten will when it goes before a judge for approval (i.e. when the judge "grants probate" of the will). I imagine it's possible to probate without it, but I'm not sure how that works.

If there's no NC8, there is a scramble to complete it -- you have to try to locate the witnesses if they are still living, and get them to swear the oath. I bought a wills kit myself 2 years ago when I was in law school (hoping to get an edge on an upcoming wills exam) and I was not impressed with it. It also didn't include an NC8. 

Nowadays, this formality gives an advantage to the lawyer-drafted will when it comes to administrating the estate. This advantage is already inherent in the estate planning process when you draft a will -- because a lawyer is usually sensitive to the pitfalls that can accompany estate administration, firms tend to (and should) record the information that will help avoid those pitfalls, and document it in the file. We ask about bank accounts, credit cards, loan guarantees, spousal support obligations, life insurance add-ons to credit cards or other debts, timeshare properties, if there's a safety security box, if they've pre-paid a funeral, life insurance, pensions, shares, bonds, annuities, farms, website domain ownership, etc. 

Often, the next time the law firm sees the will is after the person has passed, and the executor needs legal advice and/or representation. So we retrieve the will, along with the NC8, and hope the lawyer took great notes. And if not, a paralegal knows how to hunt down that information another way. 

I know that wills sound expensive, since all you receive is a piece of paper ... but all solicitors are wary of them. The worst part is that you often don't find out that you made a mistake until years later, and just one lawsuit can cost tens of thousands of dollars. So from a business perspective, the value of wills work lies not in the fees at the time of drafting, but the estate administration fees that may be earned if the executor retains the same firm. 

Sorry for the rambling. Happy holidays to all!


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## humble_pie

i have two pages attached to my will. They are the witness documents. One for each witness. Not called an NC8 here. But i believe that witnesses must sign a will in English form stating that they witnessed the testator's signature, not only in every canadian province but in every jurisdiction the world over that practices english common law.

each witness document gives the name & residence address of the witness, and also names the other witness, and states that the testator has signed his or her will "in my presence, and in the presence of X (name of other witness.)"

it seems to me that lawyers are very scrupulous about getting the witness documents prepared & signed at exactly the same moment as the will signing itself. It's nothing to accomplish at the time. It's huge grief to try and accomplish this years later. The fact that will kits are sold without witness documents & possibly without spelling out the need for witnesses really chills me.

i've never seen a will kit maybe if i have spare time in 2011 i'll look at one out of curiosity. They may based on holograph wills, which as far as i know don't require witnesses.


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## NorthernRaven

I've been looking at the legalwills.ca site, and theirs has the following at the signing block:


> SIGNED by the testator, Hendrik van der Decken, as his last Will, in the presence of us, both present at the same time, who at his request, in his presence and in the presence of each other have hereunto subscribed our names as witnesses.


The witness area has labelled space for each witness's printed name, address and occupation, as well as the signature.

Alberta's NC8 is something separate, apparently needed when submitting the will for probate. Racer, does Alberta require an NC8 from both witnesses, or just one? I found a Nova Scotia equivalent (Affidavit of Execution) and they seem to only need it from one of the witnesses.


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## Racer

humble -- yes, that may have been it. I wish I could recall. It was about 10-15 pages of instructions, advising what each paragraph should say. 

northern raven -- just one witness' testimony in the affidavit is needed. They must sign it and swear that it's true in front of a commissioner or notary. 

Our firm won't allow our notaries to take those oaths, as with notarizing self-prepared land transfer documents. But I'm sure there are firms that would and do provide those services. 

Thanks for looking that up! Good to know.


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## marina628

My husband's mom died when he was only 17 ,her will left her share of their house to my husband.Within 6 months of her death ,my father in law remarried.He died 10 years later and second wife got everything.My husband got nothing because it was matrimonial home and my father in law inherited it when his wife died.
After that time ,our lawyer said you leave cash not property to your kids.We have two kids together and our only marriage.We have sizable life insurances and have left 50% to spouse and 25% each to our kids.

We have an additional $300,000 policy which was meant to provide an income to guardians of our kids a monthly fee until the youngest turns 18.Our Youngest will be 8 in January so still another 10 years TO keep this in place then we will change it to be split the same as the other policies.

We just did our will less than 1 week ago and have done it so we don't need to update it for another 10 years.As business owners ,we were advised to make our 18 year old a director and give her signing authority but no voting shares/ownership so if one or both of us died she has ability to pay the bills etc.
Part two of our estate planning is not done yet (January 2011 project!) and involves creating a trust and a bit more education on our part as to what we will do with business if both of us died at same time,how to structure it etc.I am very lucky I have a good team of employees who do the day to day work which will keep things running and we have an accountant who understand all the financial needs of the business .

I hope my husband and I are alive for another 50+ years but you have to assume for all scenarios ,as a parent the hardest thing for me was imaging my 7 year old without us and how she would feel so we picked guardians who are willing to move into our existing home with our kids and continue to raise them here .Our estate has a monthly provision for this and we have one professional and one family member assigned to ensure things go on for best interest of our kids.
Hopefully we will all live to see the kids off to college and become adults .We paid $700 +HST for two wills ,two living wills and guardianship docs.Lawyer said to expect $500 -$1000 for the business aspect of things to get set up,he is refering us to another lawyer for that.I also have never seen a tax planner/Lawyer but just in a week or so reading here realise we need to do this as well.

Marina


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## kcowan

Marina

The only other thing you need to consider is what would happen if you died before your husband. What would happen if he remarries, etc?


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## marina628

We have things set up in case one of us dies before other that protect the kids.


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## fraser

You need more than a good will to protect your loved ones. 

We have gone thru two death/will/executor situations in the past several years. And prior to those deaths we administered the assets.
In no particular order....have a will, get a willing executor who has common sense, complete power of attorney documents in case you are incapacitated, and finally arrange your assets/beneficiaries such that you will will not end up paying probate fees (an absolute tax rip off in provinces such as Ontario and BC).

And if you are an executor, do not be afraid to probate a simple,straight forward estate yourself instead going to a lawyer . We just did this for a BC estate-it was a snap. The probate kit cost us $30. at Staples. The lawyer wanted a flat percentage of the estate, in our case just over $5,000. The folks at the court house are very friendly and will help you...just don't try them on a busy day.


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## marina628

Just to update this thread my lawyer died last Monday of massive heart attack and was very young  Only a month ago we were in to get our wills done and he looked in perfect health ,goes to show you never know


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## GlenB

It is funny that I would stumble across this as my wife and I made out wills prior to our Anniversary departure to Mexico last December. I went over the net to obtain wording for what was relevant to our family situation. We hand wrote and also typed out (due to poor hand writing on my part mainly) our wills and had them signed by our witnesses according to Ontario Law. I also left a sheet with all of our debts, bank accounts and investments to ensure all would be known and to aid the process if something did happen. We have never gone to a lawyer as of yet for our wills but may so sometime in the future. I do feel comfortable with our wills as they are though.


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## the-royal-mail

marina628 said:


> Just to update this thread my lawyer died last Monday of massive heart attack and was very young  Only a month ago we were in to get our wills done and he looked in perfect health ,goes to show you never know


That is so sad. What a waste of a productive citizen. Any word as to the cause?


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## LondonHomes

We updated our wills last year prior to taking a trip. When we signed the wills we chatted with our lawyer and I learned something interesting. She said she had 2 kinds of clients.

1) People with their affairs in order, who never seem to need their wills.

and

2) Families of people with no wills who ended up needing one.

Personally I'd prefer to have a will prepared and be in the first group.


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## the-royal-mail

I agree with London. This thread has been "bugging" me since it was first created. I DO have my financial house (IMO) in tip-top shape but there's some mental block that is preventing me from doing the same for a will. I KNOW it's important. People in their 30s don't have death on their mind, maybe that's what it is. But with my savings, I would want them properly dealt with if something were to happen. Not just sucked up in taxes and fees and red tape.


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## Plugging Along

We're in the same boat. I have my financials in order, however, I keep putting aside a will.

To make things worse, we have 2 kids. We have already asked, and notified all family who the gaurdians are (and back ups), along with who the trustee and the executors are. 

We just haven't gotten a lawyer to draft it up yet. I was thinking about doing it before we went on a family vacation, and just ran out of time. Then I thought about again when I saw this, and the fact the my husband just left for Vegas. 

I even had a lawyer help my parents update their will, and still didn't get it done.

Not what is wrong with me?


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## Four Pillars

Plugging Along said:


> We're in the same boat. I have my financials in order, however, I keep putting aside a will.
> 
> To make things worse, we have 2 kids. We have already asked, and notified all family who the gaurdians are (and back ups), along with who the trustee and the executors are.
> 
> We just haven't gotten a lawyer to draft it up yet. I was thinking about doing it before we went on a family vacation, and just ran out of time. Then I thought about again when I saw this, and the fact the my husband just left for Vegas.
> 
> I even had a lawyer help my parents update their will, and still didn't get it done.
> 
> Not what is wrong with me?


Stop yapping and get it done. Make it the TOP priority and get it done. Phone the lawyer and set up an appt - that should give you a deadline.

For the record - it took us a while to get it done too - we did the initial meeting and then we took quite a while to figure out all our stuff (ie write down all the account numbers, figure out who should get the kids, executor, power of attorney if we can't make life support decisions... etc etc etc.)


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## Plugging Along

4 Pillars: Thanks for the kick in the pants. My husband just left town, but I will make the call this week. 

I didn't realize I needed all the account numbers. Is this for bank accounts or everything?


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## Four Pillars

Plugging Along said:


> 4 Pillars: Thanks for the kick in the pants. My husband just left town, but I will make the call this week.
> 
> I didn't realize I needed all the account numbers. Is this for bank accounts or everything?


I don't think the account numbers are mandatory, but our lawyer suggested that it's a good idea. To be honest, I can't even remember if we gave him a copy (I think we did).

The idea is that if one spouse dies - the other will have access to all the bank account, investment accounts etc. If both spouses die, then the list will help the executor to figure out what and where the assets are.


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## MoneyGal

You DON'T need the account numbers to get started. They're not even part of the will (they're just part of a checklist your executor will need and your lawyer will furnish). 

DO NOT use the excuse that you have to gather papers, or make decisions, to delay making the appointment. *MAKE THE APPOINTMENT*. Handle small details later (like recording account numbers).


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## the-royal-mail

MoneyGal said:


> DO NOT use the excuse that you have to gather papers, or make decisions, to delay making the appointment.


I use this, but not as an excuse. I like to be prepared before seeing anyone (especially a lawyer of all people!) and was perhaps mistakenly under the impression that you should have your stuff together before calling?


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## MoneyGal

Not in this case. There are no accounts to transfer...or set up...or close down...or even verify. 

What the lawyer needs is to know your intentions and your situation. Basic things like "are you married" and "how many children do you have?" 

I promise you you don't need a single piece of paper or bit of memorized or recorded information for the initial meeting to get you going. If you have those things you MIGHT need them but _you do not need to know a single account number of any kind in order to make and keep an initial estate-planning meeting with a lawyer. _


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## the-royal-mail

Clear as a bell. I will make the call this week.


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## Plugging Along

Marina: Thanks for the second kick in the pants. I will be calling.


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## kcowan

In fact, the will should set out the generalities and not the specifics of account numbers. These will change but your intentions will not (as often).

We set out a provision in our will that our pets will be looked after by a guardian who will receive $25000 for their trouble. The specifics are to be set out in a letter to be found in our safe deposit box. We have changed this letter several times as people's lives have changed. No need to contact a lawyer for these.

So the advice is to make sure your desires are clearly stated with less detail so that the lawyer does not makes a fortune on changes.


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## the-royal-mail

Alright. I made the call and setup the appt for next week. They said I should bring the names of executors and beneficiaries. Ha, I KNEW I wasn't fully prepared for this. I know who the beneficiaries are but I have no friggin clue how to get an executor. I don't have any family or friends close enough for this. Surely there are others in a similar situation. Any advice on how to select an executor before this meeting?


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## MoneyGal

Assign it to the law office - if they offer that service. Or your accountant. Or ask for their recommendation(s). Many law offices / accountants offer executor services for a fairly modest fee (given that the fees are regulated).


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## the-royal-mail

Whoa really?? That I did not know. Excellent. Now I feel I'm ready for that meeting.


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## marina628

Four Pillars said:


> I don't think the account numbers are mandatory, but our lawyer suggested that it's a good idea. To be honest, I can't even remember if we gave him a copy (I think we did).
> 
> The idea is that if one spouse dies - the other will have access to all the bank account, investment accounts etc. If both spouses die, then the list will help the executor to figure out what and where the assets are.


we had to give account numbers ,estimated balances of them and address of banks where investments are.Makes sense if you don't could be some lost money down the line.My lawyer was Mark Seetner from Whitby from what I know he died of massive heart attack.Quite the shock for us as we had dealt with him only a month or so ago.
Make sure you think of all scenarios ,remarriages etc.


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## LondonHomes

marina628 said:


> Make sure you think of all scenarios ,remarriages etc.


I our case had discussed what we wanted to do in the most obvious senerios. When we meet with the lawyer she asked about a lot more than just the obvious senerios. Which because we had discussed some ideas before hand we could answer.

You do not need to think of all the scenarios a good lawyer should provide you with them.

And don't feel pressured to come up with an answer right away, we got draft copies of our will mailed to us after the meeting, which we heavily edited (several times) before sending back to get a final version created.

So there is no excuse to delay get them done.


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## kcowan

If you are a snowbird and own property in another country, you will need a will that is recognized in that country as well.


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## the-royal-mail

Well I finally managed to meet with the laywer to get this done. Knowing a laywer nearby that I can call is quite handy, and this is yet another example. We discussed my wishes and he took notes. The will will not identify account numbers and such, though I will write up a list so my beneficiaries will know where all the assets are. Easier for me to maintain this type of list on my own.


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## MoneyGal

Hooray TRM! Great news. Thanks for sharing your update!


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## fraser

We bought the will kit. Not to do it ourself, but to have a basic understanding and give some thought to this prior to engaging the lawyer.

We thought we had it 'down pat' until the first meeting with the lawyer to review our draft. She was excellent and her questions were thought provoking as was her discussion about 'what can happen if'. It was a very good process. We will revisit next year to review and make changes.

Recently, I closed off my mother's estate. I spent some time over coffee with the lawyer who did the conveyancing. Both my parent had wills, POA's, etc and had made/prepaid their own funeral expenses. The lawyer told me what would have happened had a valid POA (this enabled a straightforward sale of real estate and other assets-she was mentally incapacitated), and will etc not been in place....about nine months delay in selling real estate, lot's of emotional distress, and anywhere from 20-30K in legal fees. 

If you do not want to do it for yourself, you should consider doing it for your loved ones. They will thank you for it.


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## kcowan

My brother was sick 5 years before he died and I told him to make a will at that time. There was only one surprise. He wanted to have his ashes buried in our parents gravesite.

Had he not had a will, i would probably have spread them up at the faimily cottage.


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## kevinB

Are the procedures for getting a will in Quebec (civil code) any different than those in the other provinces (common law)? I'm always wary of this because perhaps a notary is adequate (not a lawyer) or perhaps a codicil is not recognized, etc, etc.


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## Four Pillars

Here is an article about the estate of Steig Larsson (I read his books over the holidays).

Apparently, his companion of 30 years (not sure if they lived together) gets nothing because there was no will.

He died fairly young (early 50's) before the books started selling, so it's understandable that he hadn't bothered with a will. 

A good lesson in unexpected happenings I guess.

http://www.thestar.com/entertainmen...-feud-over-dragon-tattoo-estate-heats-up?bn=1


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## MoneyGal

The NY Times Magazine had a long piece on "the afterlife of Steig Larsson" earlier this year, here: 

http://www.nytimes.com/2010/05/23/magazine/23Larsson-t.html

It covers some of the same territory. An interesting read.


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## Karen

I came across this article this morning and thought I'd post the link here because it's related to the matter of disinheriting children that was discussed earlier in this thread:

http://www.everydaymoney.ca/2011/01/disinheriting-family-members-often-tough-to-do.html


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## reccoso

*Wills, Designation of Benificiary etc etc*

Hello, I'm relatively new to money matters, and don't have a will.
My questions are:
1 - what happens to your possessions - cash, house, investments if you die w/o a will.
2 - can I designate a beneficiary for all of my investment accounts, or just the registered ones?
3 - why is there a need to designate a beneficiary, ie can't you just say in your will that your all your investments should go to Mr. A, Mrs. B etc Does it not serve as a catch all designator of who will get your stuff.
4 - What' the recommended way of getting a will, and who should have a copy of it? 

Thanks


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## LBCfan

This is a touchy subject for me since I had to clean up after an intestate relative. The following may or may not be good advice depending on your: age, assets, family situation, other things.

1) Your possessions will be distributed according to the laws of your province of residence at death. If you hold assets outside of Canada, they may be subject to the law where the assets reside, not sure.
2) Just registered (I think, IANAL)
3) If you let your registered assets fall into your estate (no beneficiary) they will be 100% income on your date of death return, lots of tax to pay. If you have a beneficiary who meets certain conditions (ie. a spouse), they may pass tax free.
4) See a lawyer. Yes, it costs money, but it can cost a lot more if you don't. Ask the lawyer's advice about copies.

Good idea to get one. I keep putting off updating mine, not that I want to change much but: the lawyer who wrote it is dead, it provides for my minor children who are now in their 30's and I'd like to include the Gkids for a bit. Maybe your question will motivate me?


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## humble_pie

here is a recent wide-ranging thread on the subject of wills that covers just about every imaginable aspect. There's excellent input from at least one licensed lawyer ... all in all when it comes to wills this is a valuable resource.

http://canadianmoneyforum.com/showpost.php?p=39331&postcount=1


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## Karen

> 3) If you let your registered assets fall into your estate (no beneficiary) they will be 100% income on your date of death return, lots of tax to pay. If you have a beneficiary who meets certain conditions (ie. a spouse), they may pass tax free.


While this answer is correct as far as it goes, I think it's important to stress that an RRSP or RRIF doesn't pass untaxed to any named beneficiary except a spouse or dependent children. Another important point that wasn't made is that naming a beneficary when possible (registered investments, insurance policies, etc.) avoids the payment of probate fees, as would happen if the proceeds went into the estate. This is more important in some provinces then others - B.C. has the highest probate fees in the country, and I understand that Ontario's are also quite high.


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## Toronto.gal

Karen said:


> I think it's important to stress that an RRSP or RRIF doesn't pass untaxed to any named beneficiary except a spouse or dependent children.


This is correct, so the government does well in situations where an individual has no spouse/children; sounds a bit unfair, doesn't it?

Probate fees:
http://www.taxtips.ca/willsandestates/probatefees.htm


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## kcowan

Toronto.gal said:


> This is correct, so the government does well in situations where an individual has no spouse/children; sounds a bit unfair, doesn't it?


Why is it unfair?


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## Toronto.gal

Karen's comment reminded me of an example I read in a Estate Planning book that illustrated how a man had left all to his wife, except for his RRSP, which he left to his sister [not realizing the tax consequence] and 1/2 of it was immediately taxable upon his death.

Perhaps I'm mistaken and reason for which I used a question mark, but if let's say his sister would have been eligible to defer tax payment, would it not have translated into less taxes for the government in the long term and/or more money for the sister?


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## LondonHomes

If you have any assets you should have a will and if you have any kids you should have a will as well.

They are relatively inexpensive to create, especially compared to the costs of needing 1 and not having 1. You really just need an hour to meet with a lawyer will walk you through the processes and answer your questions.


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## Toronto.gal

Not sure if your comment was general or directed at me, but I already have a Will.

The scenario noted above does not apply to me, but curious nonetheless, so if someone has the answer, it would be appreciated.


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## the-royal-mail

I did it! Signed and picked up the documents last night. Now it's official. The lawyer was quite helpful in answering my questions.

One important point bears mentioning or repeating if it hasn't already been said. Write up a simple WORD document for your executor to tell them where everything is and to get into specifics about what to do with various collectibles and such. For example:

1. there is $x in a TFSA at Bank of Nova Scotia, account #1234567
2. in the coin collection, all Canadian coins should be given to Joe Friend at 555-1212

And so on.

I've been working on this document for several months. I will give it to my executor once completed along with copies of the will. The document can be updated by me on an ongoing basis.

Note that a personal will becomes null and void as soon as you get married.

Thanks to MG and others in this thread for encouraging me to get this done. It was way easier than I thought. MG was right - just make the app't with the lawyer.


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## MoneyGal




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## kcowan

the-royal-mail said:


> ...Write up a simple WORD document for your executor to tell them where everything is and to get into specifics about what to do with various collectibles and such. ...


I did that two months ago for my DW executor. Now she knows how to access all our investment and bank accounts and where all the hidden assets are, e.g. an old company group life policy.


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## marina628

We are going on April 25 to update our wills ,do a living will and set up a Trust.We have a 8 year old daughter and own a Business so the trust was something we were advised to do.I guess I will get all my ducks in a row then !My husband was a kid when his mom died ,his father remarried and my husband lost his father when he was still young.Step mom got everything so we have a step-monster clause in case one of us die young.It is important to my husband that we protect our kids from what happened to him.


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## stardancer

marina628 said:


> We are going on April 25 to update our wills ,do a living will and set up a Trust.We have a 8 year old daughter and own a Business so the trust was something we were advised to do.I guess I will get all my ducks in a row then !My husband was a kid when his mom died ,his father remarried and my husband lost his father when he was still young.Step mom got everything so we have a step-monster clause in case one of us die young.It is important to my husband that we protect our kids from what happened to him.


That happened to my husband also...he was a dumb kid of 18 when his father died and step-mom took over. Even now at 72, he still resents it. Good move on your part.


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## allgood

the-royal-mail said:


> I do agree - it's only in recent times when a will became more important for my situation. Might be worth the $1000 (?) or so to talk to a laywer and get it done properly. Young people tend not to think of it, but as you accumulate assets and savings, who really knows what happens after someone dies?


I know you've got yours done now (good for you!) but it might be helpful for other here to know that a lawyer drafted will costs less than you may think. I charge around $250 for a will- less if it is extremely simple, a bit more if it's complicated. With powers of attorney ($75 each - and absolutely essential), plus taxes and disbursements, a simple will comes out to around $500. We also store wills at our office for free in our fire safe. From what I know, our prices are fairly normal for a small firm in Toronto.



Wealthy1Day said:


> My question is about lawyers... outside of a real estate lawyer who my RE agent connected me with, how does one go about seeking lawyers whether it be for wills, employment, etc.? As easy as it may be to do a Google search, I can't help but think that there must be a more sophisticated approach to finding and hiring one. Or is there, really? Seeking out lawyers for anything is new to me.


Ask friends and relatives if they can recommend a lawyer - be sure to ask more than just who did up the will, ask if they were happy with the service - did the lawyer explain things in an easy to understand manner, did the lawyer return their calls promptly, etc. Or you could just PM me for an appointment .



Wealthy1Day said:


> How much do Toronto lawyers charge for a will, in general?
> 
> (...)
> Now my question in terms of costs goes beyond the initial drawing of a will. Should I get married and have kids, what are the charges to update the will?


See above, a simple will should cost around $500. If you get married, your will is invalidated by law, so the charges would be for a new will. If you need to change something simple, it can be done by codicil, and likely would cost around $100-150 (plus taxes, disbursements, etc.) Generally speaking, you should only make very simple changes through codicil. Also, having a bunch of codicils can be confusing, so I usually suggest a full rewrite if there are more than 1 or 2 codicils to the will. It saves the estate money in the long run to just redo the will, rather then ending up probating a will with a bunch of codicils.



humble_pie said:


> i have two pages attached to my will. They are the witness documents. One for each witness. Not called an NC8 here. But i believe that witnesses must sign a will in English form stating that they witnessed the testator's signature, not only in every canadian province but in every jurisdiction the world over that practices english common law.
> 
> each witness document gives the name & residence address of the witness, and also names the other witness, and states that the testator has signed his or her will "in my presence, and in the presence of X (name of other witness.)"
> 
> it seems to me that lawyers are very scrupulous about getting the witness documents prepared & signed at exactly the same moment as the will signing itself. It's nothing to accomplish at the time. It's huge grief to try and accomplish this years later. The fact that will kits are sold without witness documents & possibly without spelling out the need for witnesses really chills me.


In Ontario it's called an affidavit of execution, and it is essential. I recently probated a will where the affidavit had been lost (or possibly there never was one - the lawyer who wrote it was sanctioned by the law society a couple of decades ago, and was nowhere to be found.) We were able to work around it with affidavit evidence from people who recognised the signature, but it was very time consuming, and thus very expensive for the estate. The moral of the story is that having a solid will saves your heirs a ton of money later on.



reccoso said:


> Hello, I'm relatively new to money matters, and don't have a will.
> My questions are:
> 1 - what happens to your possessions - cash, house, investments if you die w/o a will.
> 2 - can I designate a beneficiary for all of my investment accounts, or just the registered ones?
> 3 - why is there a need to designate a beneficiary, ie can't you just say in your will that your all your investments should go to Mr. A, Mrs. B etc Does it not serve as a catch all designator of who will get your stuff.
> 4 - What' the recommended way of getting a will, and who should have a copy of it?
> 
> Thanks


1) Your possessions will be divided up according to the succession laws in your province. In Ontario, if you have a spouse but no kids, your spouse gets everything. If you have a spouse and kids, the estate goes totally to your spouse if it's worth less than $200,000, and is divided between spouse and children, with the spouse getting a larger share ($200,000, plus a share of the money over $200,000). If you have kids and no spouse, the estate is divided among the children. If you don't have a spouse or kids, the estate is divided between your parents. If your parents are also dead, then its divided amonge your siblings. Then neices and nephews. Then next closest kin, etc.

In most cases the way the money is divided is pretty fair, and not that far off from what most people choose for themselves. However, the legal fees and time involved will be higher.

It's also possible that the legislated division is nothing like what you would want. In my case, with no husband or kids, if I were to die without a will my parents would each get half. However, my parents are well established financially, and half of my small estate wouldn't really make much of a difference in their lives. However, I have three younger half-sisters who are in their teens and early 20s, just getting started in life. One of the reasons I decided that I do need a will, was so that I could set up trust funds from my sisters. If I died without a will, my sisters would get nothing.

2) Just the registered ones.

3) By designating a beneficiary, you can exclude your registered accounts from the probated value of your estate, saving probate fees. Probate fees in Ontario are $5 per thousand for the first $50,000, and $15 per thousand above $50,000. Since registered accounts are often a big part of an estate, designating a beneficiary can save a lot of money. 

4) The recommended way is to go to a lawyer, have it drawn up, and the have the original stored by your lawyer, or in another safe place. Give a copy to your executor, or tell him or her where the original is stored. Keep a copy for your own records too. I generally staple my card to all of the copies I make for my clients, so that their executors know where to find the original.

One last thing - never, never keep your original will in a bank deposit box. The bank won't allow access without the will, so if the will is in the box, logistical nightmares will ensue. Again, this will end up costing your estate money, because you'll be paying a lawyer to argue with the bank.


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## the-royal-mail

Very interesting post, allgood, and thanks for writing it. Most of what you said is consistent with what my local lawyer told me the other day. My cost was less than $200, though he did suggest (contrary to what you say above) that a safety deposit box should be considered for this purpose. I just don't want the added expense and hassle of having to keep track of yet another thing (ie. safety deposit box). I do have a box of important papers in my house, that's about all I can do for now I guess. I don't think the lawyer offered to store it in his office since his svcs to me for the will are complete. They also do not act as executors, as an earlier post here suggested.


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## allgood

the-royal-mail said:


> Very interesting post, allgood, and thanks for writing it. Most of what you said is consistent with what my local lawyer told me the other day. My cost was less than $200, though he did suggest (contrary to what you say above) that a safety deposit box should be considered for this purpose. I just don't want the added expense and hassle of having to keep track of yet another thing (ie. safety deposit box). I do have a box of important papers in my house, that's about all I can do for now I guess. I don't think the lawyer offered to store it in his office since his svcs to me for the will are complete. They also do not act as executors, as an earlier post here suggested.


I'm suprised a lawyer would suggest a safety deposit box - any lawyer who does estate solicitor work should know what a headache that causes. Do you know if the lawyer who drafted it also does estates? 

I do know that some older lawyers who do not to store wills, since it can be a hassle to deal with at retirement. A retiring lawyer needs to find a younger lawyer who will accept the stored wills. 

If you are in the GTA, I can store it for you if you wish. Storage of the will is generally a separate thing from acting as an executor - we store wills even though I prefer not to be an executor (unless a client really has no one else to ask - I have a few older clients with no kids, or no responsible kids, and at an age (90+) where most of their friends are dead or incapable - it's very sad.)

You can also buy a small fire safe for around $50 at costco, for your will and for other important papers.


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## kcowan

When my Dad died, TD in Toronto gave us access to the safe deposit box for the original will after showing them a copy and confirming that the copy was the latest to our knowledge. The copy came from the lawyer who had not taken responsibility for the original.

Our lawyer here is Vancouver holds the original of our will.


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## betsu63

*No Will*

My husband passed away suddenly without a will and I was stressed it was going to be an awful situation to settle his estate. Because we/he had no children it wasn't any harder than having one I don't think. For most things the certificate of death from the funeral home was adequate and I also got a letter from a lawyer stating that we were married and had no children. Nothing had to be probated and I had no problems with anyone. That said, I did make a will out and wouldn't recommend not having one. If we had both died, it would have been a mess. The sad apart is that it is very time consuming to notify everyone and have to tell your story over and over. You have to notify every ministry in the provincial and federal government. In my opinion if you are receiving survivor CPP because your husband died you shouldn't have to notify Revenue Canada etc. that they are dead as an example.


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## MoneyGal

allgood said:


> If you get married, your will is invalidated by law,


Not in Quebec.


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## LBCfan

When my mother died, I showed the bank the death certificate and they allowed me to access her safety deposit box for inventory and remove the original will. This was 1990 Sk.


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## I'm Howard

How does common law affect a will?


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## MoneyGal

It doesn't.


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## Karen

As my sister's executor, I too was allowed access to her safety deposit box to remove her will, accompanied by a bank employee. This was at a Royal Bank branch in Victoria.


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## the-royal-mail

Interesting Karen. Did they charge you a fee?


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## Karen

There was no fee; as I said a bank employee accompanied me to ensure that I took only the will. Mind you, this was nearly 15 years ago, so possibly the rules are being more strictly enforced these days.


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## the-royal-mail

I see. Reason I ask is because I got a letter about RBC fee gouging increases on June 1 and one of the items inceased from $100 to $200 for "Safe Deposit Box drilling fee to remove lock when both (2) keys to the box are lost". I had been thinking they might apply this fee in your case since you didn't have the key.

Maybe the solution to this interesting situation is to give your executor the key to the safe deposit box. Then they will be able to get all the papers they need without needing to convince anyone.


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## Karen

In this case, I had the key so there was no need to have the box drilled. Another thing I didn't mention earlier is that, not only did the bank employee check that I took only the will, but she also checked the will and my ID to ensure that I really was the executor before I was allowed to remove it. It was a small branch where they knew my sister well, so possibly they were being a bit loose with the rules.


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## larry81

Here is my current situation:

- ~30 years old male
- no dependent's
- not married
- no debt
- have assets spread in various account's
- Own a condo (worth more than the mortgage)

Is a will drafted by a notary necessary ? How much should i pay for it ?


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## OhGreatGuru

larry81 said:


> Here is my current situation:
> 
> ...
> 
> Is a will drafted by a notary necessary ? ...


If you don't care what becomes of your personal property or assets;
If you don't care if the provincial trustee decides who inherits;
If you don't care if legal and administration fees eat up a lot (or most) of your estate;
If you don't care about your funeral arrangments;

Then don't bother writing a will.

You may want to be concerned about who has POA for Property and POA for Personal care in case you become incapacitated though.


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