# Need help with drafting a will



## STech (Jun 7, 2016)

Hi everyone.

I need to have my will done, and I'm extremely leary of online and DIY kits, so I'm going to a lawyer to get it done. I'm wondering if anyone can offer some suggestions on what to consider, and what to take to the lawyer, etc. I'm sure he or she will guide me through, but it doesn't hurt to ask for other's experiences and thoughts.

And if anyone has done it recently, what's the ball park price for a lawyer to do a will in Ontario? I've read that it might take them months to get it done, since they work on dozens of cases at once. So I'm thinking of doing a holographic will, and going to city hall, or somewhere else to have it witnessed in the mean time. 


Thanks


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## OptsyEagle (Nov 29, 2009)

You would need to tell us about yourself for any specific help.

Depending on the complexity, a lawyer is either worth the money they charge or a complete waste of money. If you have never gone to a lawyer before, the 1st will with a lawyer is probably a good idea. After that, if you have only been married once, no children or no children you are trying to disinherit and you have some basic understanding of family law, I don't think a lawyer is necessary.

That being said, lawyers tell me they make more money off people fighting over estates then they do writing up wills so I will leave that decision to you. Guess where all that money they make comes from. You would think the people fighting over it, would pay that cost, but if you did you would be wrong. The estate usually does.

As for cost. Some firms charge a ridiculous amount of money. They pretend they are worth it. All they are saying is that because they charge a lot, they must be worth it and therefore because they are worth it, they charge a lot. I wouldn't pay more then $250 for a basic will and I cannot comment on what I would pay for a complex one, but suffice to say, do your best to reduce the complexity.

Lastly. Don't try to control your money from the grave. That is not what a will is for but you would be amazed at how many people think it is.


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## STech (Jun 7, 2016)

Thanks Optsy. I'm trying to do the leg work ahead of time, to reduce the complexity and costs dealing with a lawyer. I know very well how quickly their fees add up, and how quickly the nickle and dimes add up when they charge 3 or 4 dollars to photocopy a single page, on top of their $300-$400 per hour fees.


Some lawyers are worth their fees, and some aren't worth a dime of their abhorrent and grossly over inflated prices. None the less, I want to work with one, to make sure it's done properly. Some questions I can think of.

1. What's a complex situation vs a simple one? Multiple businesses, maybe children from previous marriages?
2. I know you should update your will if you get married/divorced/have kids/or co habit. But what about if you start a business, or you buy other properties?

I'm sure there are others I haven't thought about just yet.


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## Onagoth (May 12, 2017)

STech said:


> Hi everyone.
> 
> I need to have my will done, and I'm extremely leary of online and DIY kits, so I'm going to a lawyer to get it done. I'm wondering if anyone can offer some suggestions on what to consider, and what to take to the lawyer, etc. I'm sure he or she will guide me through, but it doesn't hurt to ask for other's experiences and thoughts.
> 
> ...


When my wife and I had ours done, we paid around $600-$700 for two wills and two POAs. It was a menu-price so not any higher based on how many questions get asked.

We used a lawyer and the lawyer actually asked a lot of questions we hadn't considered. Undoubtedly your will is more complex if you had a spouse and even more complex if you have kids.

If you have those relationships, you need to think about a lot of things like if the house will be sold upon your passing of if the kids become joint owners, or if you don't want your spouse to have all your assets, etc, etc...

My will is pretty straight forward...everything goes to my wife if I die...and every thing goes to our kids if we both die. I've been meaning to have a codicil done up though since my sister-in-law is our kids guardian and executor and she recently expressed some views that were completely opposite of our intentions (regarding her ability or right to draw on the capital of the estate).

So I would say definitely use a lawyer....and if you think it is valuable, maybe consider using a trust company to execute your will if it comes to that.

Also, if you own an incorporated business that you want to leave to kids or someone else, consider setting up a second will for it. The purpose of a second will is to put all assets that will not be probated so they can cheaply move to your beneficiaries. Ontario probate fees I think are around 2%


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## OptsyEagle (Nov 29, 2009)

A complex case can come from either a complex situation or you making it a complex situation. 

The things I have seen are:

1) Re-marriage. Children from both sides. In my experience the money usually ends up in the hands of the children of the survivor. Yes. They both agree to distribute it equally upon the last death, but I would say the likelihood of that depends on the difference in time between the death of the two spouses. Longer then 10 years and you can say goodbye to that pipe dream. With that in mind, one can do things to give the planned result more hope of happening. Distributions on the 1st death. Usually difficult financially. Life insurance works great here but they don't give that away for free. Usually cheaper then giving part of the money, but it will take a big chunk of it. Trusts are the best, but expensive, so not a great idea for estates less then $1,000,000 or close to that.

2) Is anyone dependant upon the estate. If you are paying an ex-spouse a monthly income, even if it is out of the goodness of your heart, he/she can become a debt tot he estate. You would need to make some provision. It does not need to replace the income, you just need to address it. Again, if you leave him/her out and he/she fights it. The legal fees are all paid by the estate. Why wouldn't they fight it. The only answer is ignorance. They just didn't know they could.

3) Are you required by divorce agreement to pay child support and/or alimony. Are you required to buy life insurance to protect it. Even if the latter is not the case, you are legally liable for this. You will not be shafting the b*!ch when you die. You will be shafting your current family since that person will get positioned ahead of them in the estate, as any creditor would. Don't be dumb here. If you don't do the right thing, the wrong thing will be done to you and the people you do care about. That is all that happens.

4) If you want or need to leave a child out of the will, it is a good idea to address that issue in writing as well. More then just leaving their name out. That would be a big financial mistake if that child had any idea of family law.

5) If you want to leave your money to siblings. Do you want it all to go to JUST the surviving siblings or to the children of the sibling, if that particular sibling were dead.

6) As the above poster said. If someone is charged with looking after your non-adult children, how much of your estate should that person get to pay for those costs. Who is going to manage the children's inheritance when they are minors. Can you trust them. Very few eyes will be watching. They do deserve some compensation.


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## STech (Jun 7, 2016)

Thanks for the info guys. LOTS to consider obviously. I'm not overly enthused about this exercise, but I know I'd feel much better when it's all set and done. This is my new year's resolution, so I better get going on it.

Speaking of trusts, what the heck are they exactly, and how should it be used? Yes my estate will be north of a million if I pass today.


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## Beaver101 (Nov 14, 2011)

^^^^


> So I'm thinking of doing a holographic will, and going to city hall, or somewhere else to have it witnessed in the mean time.


 ... I don't think a holographic will needs witnessing.


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## Onagoth (May 12, 2017)

STech said:


> Thanks for the info guys. LOTS to consider obviously. I'm not overly enthused about this exercise, but I know I'd feel much better when it's all set and done. This is my new year's resolution, so I better get going on it.
> 
> Speaking of trusts, what the heck are they exactly, and how should it be used? Yes my estate will be north of a million if I pass today.


I'm not sure of the exact legal nuance, but for tax purposes, all the assets in your will pass into a testamentary trust upon your passing. In this trust, you were/are the contributor, there is a trustee/executor and the beneficiaries under the will are the beneficiaries under the trust.

The trust is taxed on a preferential basis for a period of time. These rules changed substantially with the Graduated Rate Estate rules and I'm not overly familiar with them. If I recall correctly, under the new rules the executor has 36 months to distribute all the assets otherwise the trust begins to be taxed (on it's income) as a normal inter-vivos trust (top marginal rates)

Keep in mind certain assets (like life insurance proceeds) flow directly to the named beneficiaries under your policy and do not go through your will. It's my understanding this is also the case for property owned in joint-tenancy with another person, but that might depend on the province.


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## birdman (Feb 12, 2013)

4 yrs ago had a lawyer prepare our wills for $500.00. including POA's and Right to Die??? I had a pretty good handle on things and he asked a number of good questions. Well worth the money. One comment that he made which was interesting and I wonder about was"you cannot control things from your grave". This was brought about by our asking what would happen if we were both gone and one of our childrens spouses took off with some fleabag and took half of their family assets which would include a possible hefty amount which we had bequeathed to our son. The alternative was to leave funds to the grandchildren but the same issues apply here, eg fleabag spouse, drugs, or whatever. Pleased with the service and well worth the $$ even though it was straight forward.


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## OnlyMyOpinion (Sep 1, 2013)

We found similar cost and value to meeting with a lawyer as frase did. Discussion around out-of-province real estate assets was valuable. Cost included a will, POA, living will, and notarized witnesses (i.e. we have the will originals and there is no requirement to locate the witnesses of the will if/when it is probated or challenged in the future).

frase, I think if the child kept their inheritance separate from the accounts & assets they have with their spouse, then the spouse is not entitled to any of it in the event of a breakup. I suppose they might find a way to embezzle it though.


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## Forebiz (May 31, 2018)

frase said:


> This was brought about by our asking what would happen if we were both gone and one of our childrens spouses took off with some fleabag and took half of their family assets which would include a possible hefty amount which we had bequeathed to our son.


Out of possible interest:
Spouses who receive an inheritance are entitled to do whatever they please with it while married. This includes sharing it with the other spouse or keeping it separate. If kept separate, inheritance is generally not subject to division. However, inheritance may become subject to division during a divorce under certain circumstances.

I'm not a lawyer and simply googled this so I'd be interested in a lawyers take at how often in a divorce after an inheritance is given that the inheritance isn't subject to division.


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## OhGreatGuru (May 24, 2009)

Beaver101 said:


> ^^^^ ... I don't think a holographic will needs witnessing.


No, but it's a lot easier to contest, and OP's $1M+ is worth fighting over.


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## OhGreatGuru (May 24, 2009)

I would have a lawyer draft the will. Ask around amongst your friends for references - fees are highly variable between practices.

I would suggest buying any one of readily available guides on writing a will in your province, not for the purpose of actually writing it, but so that you will have an idea what your will should cover; and so that you will be prepared for the questions the lawyer will ask. Don't actually write the will but prepare an outline of:
- how your estate is to be divided (beneficiaries);
- who will be executor(s) and/or alternates;

A good lawyer will ask you to identify what you want to happen if a beneficiary predeceases you - so think about that.
Most lawyers will suggest you prepare POA's at the same time - so think about that.

As others have discussed, if you have had complicated personal life, come prepared to brief the lawyer on that. (Although I suppose if you had multiple marriages you would already know a lawyer)
Similarly, if you have business assets that need to be wound up, come prepared to discuss that.


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## Mukhang pera (Feb 26, 2016)

STech said:


> So I'm thinking of doing a holographic will, and going to city hall, or somewhere else to have it witnessed in the mean time.


Never mind the witnessing part. Below is a passage from a recent publication of the Continuing Legal Education Society of British Columbia

The Identifiable Testamentary Intention: Holograph Wills and Other S. 58 Records

Holograph wills are unattested wills that are entirely in the testator’s handwriting and signed by the testator. They are expressly made valid in all provinces and territories of Canada except BC and Prince Edward Island. For example, in Ontario, s. 6 of the Succession Law Reform Act, R.S.O. 1990, s. 26 states that, “A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.” Similarly, s. 16 of the Alberta Wills and Succession Act, S.A. 2010, c. W-12.2, provides that, “A will may be made by a writing that is wholly in the testator’s own handwriting and signed by the testator without the presence or signature of a witness or any other formality.”

Holographic wills are quite common in other jurisdictions. They are often created in emergency or near-death situations, such as when an individual is trapped. A famous example is the case of Cecil George Green, a Saskatchewan farmer, who on June 8, 1948 became trapped under his own tractor and carved the following testamentary wish into the tractor’s fender: “In case I die in this mess I leave all to the wife. Cecil Geo. Harris.” The fender was later removed from the tractor and brought to court and determined to be a valid holographic will. It is now on display at the law library of the University of Saskatchewan.


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## Mukhang pera (Feb 26, 2016)

STech said:


> Speaking of trusts, what the heck are they exactly, and how should it be used? Yes my estate will be north of a million if I pass today.


Trusts set out in wills - testamentary trusts - are a certain breed of trusts created in a variety of ways and for a variety of purposes. Some are for tax reasons. A typical trust is created to postpone the vesting of a legacy (or a portion). Very often a parent will leave money (or shares, or whatever) to a child, but parcelled out over a period of time. The excerpt from the case below is an example:

_Re Bolt Estate,_ 2014 BCSC 2096

2]Vesta May Bolt executed a will on October 6, 1994 that, after various specific bequests, left the residuary of her estate on trust terms for Jody Lyn Bolt, the bankrupt. Those terms, paraphrasing, provided:
a)that the income from the trust be paid to Ms. Bolt until the age of 26 years, provided she is a full-time student;
b) that at the age of 26 she receive ¼ of the capital of the trust;
c) that she continue thereafter to be paid the interest from the trust;
d) that at the age of 35 she receive ¼ of the capital of the trust;
e) that at the age of 45 years she receive the balance remaining of the capital of the trust.
[3]The will also provides that should Ms. Bolt not attain the age of 45 years the balance remaining is to be held in trust and to be divided “…equally amongst the issue of Jody who survive her in equal shares per stirpes…”. Ms. Bolt has two children, aged 10 and 17 years.

https://www.courts.gov.bc.ca/jdb-txt/SC/14/20/2014BCSC2095.htm

An interesting testamentary trust case is that of:

_Re Estate of D'Arcy James Morrow_, 2002 BCSC 796

The court set out the background thus:

1]This application concerns the effect of a Disclaimer of Interest signed by the life tenant of the Estate of D’Arcy James Morrow. D’Arcy Morrow’s Will left four tenth’s of his estate, in trust, for the use of his widow, Vera Morrow during her lifetime. Upon Vera Morrow’s death, the Will provided that the residue be transferred to D’Arcy Morrow’s three children. Vera Morrow is financially secure and wishes the three children to immediately receive their inheritance. This application for directions is brought by the executors of the Will and trustees of the Estate of D’Arcy Morrow.
[2]The application is opposed by Donald Evans who was appointed by the court to represent the grandchildren and unborn grandchildren of D’Arcy Morrow. Mr. Evans opposes the order sought by the petitioners because such an order would deny the grandchildren and the unborn grandchildren a contingent interest in the estate. Under the Will, that contingent interest would only vest if one of the parents of a grandchild, i.e. a child of D’Arcy Morrow, dies before Vera Morrow. The issue to be decided is whether the disclaimer operates to accelerate the subsequent interests under the Will, thereby immediately closing the class of beneficiaries.

Essentially, the trust beneficiaries were seeking, with the support of the life tenant under the will, to “bust the trust”. They prevailed.

https://www.courts.gov.bc.ca/jdb-txt/sc/02/07/2002bcsc0796.htm



OptsyEagle said:


> 4) If you want or need to leave a child out of the will, it is a good idea to address that issue in writing as well. More then just leaving their name out. That would be a big financial mistake if that child had any idea of family law.


Actually, leaving a child out of a will can be near impossible, even if the child is a n’er-do-well. In all provinces the disinherited brat can apply to the court to vary the will to get a cut. Below is one example of the many we see in BC each year. It contains a useful discussion of the principles. That said, the principles seem to be rather elastic, so there is never any assured outcome in these cases.

_Enns_ v. _Gordon Estate_, 2018 BCSC 705

*WILLS VARIATION* — Children • Estate of testatrix/deceased having worth of $1.1 million on her death — Will bequeathing $10,000 to each of testatrix’s 2 adult daughters and residue to registered charities — Court finding testatrix’s effective disinheritance of first daughter having no logical and proportionate connection to testatrix’s reasons for disinheritance, given that daughter had regular phone and face contact with her parents for 36 of her 38 adult years and provided meaningful assistance when her parents became elderly, infirm and ill, despite several mean-spirited attacks by parents over the years on daughter and her husband — Court awarding her a 40% interest in the estate — In light of second daughter’s self-imposed 14-year estrangement from parents, court declining to vary will in her favour.

https://www.courts.gov.bc.ca/jdb-txt/sc/18/07/2018BCSC0705.htm


Finally, let me say I think having a lawyer draft the will is a sound idea. Too many pitfalls for the unwary. But, if you are comfortable with the concepts of “issue” and “descendants”, the difference between “per capita” and “per stripes”, the application of the common law rule against perpetuities and the statutory exceptions (if any) in your province, and a number of other concepts employed in wills drafting, then DIY is okay. 

It also pays to keep in mind some of the teachings of the case law in your jurisdiction. For example, what seems like the use of clear, unequivocal language can turn out to be not so clear if estate beneficiaries (or wanna be beneficiaries) cannot agree on things. The will might say, for example:
“To my niece Penny I leave my piano.” Seems plain enough. But, in wills interpretation circles, “my piano” means the piano the testator owned when the will was made - maybe a cheap Casio upright. Later, the testator spent the bucks on a fine Bechstein grand piano. If someone objects, Penny does not get the Bechstein. Depending on any relevant legislation, the Bechstein most likely falls into the residue. A prudent lawyer will draft the dispositive clause to leave Penny "the piano of which I die possessed". 



STech said:


> Hi everyone.
> 
> I'm wondering if anyone can offer some suggestions on what to consider, and what to take to the lawyer, etc. I'm sure he or she will guide me through, but it doesn't hurt to ask for other's experiences and thoughts.
> Thanks


As for "what to take", the handbook for lawyers on my bookshelf gives some idea what to expect the lawyer to ask, and gives some clue as to what you should have prepared:

E. Obtain the Client’s Personal Information

The lawyer should discover as much about the client as possible. For example, if a client has had
several different names the lawyer should determine the reason. It may be appropriate to ask for
identification such as a driver’s licence, birth certificate, passport, or citizenship certificate. Photocopy
the documents and place the photocopies in the will file. A lawyer should be aware of any major 
changes which may affect the client’s will, such as a pending marriage or divorce, immigration or
emigration, change of occupation, or national residency.

F. Obtain the Client’s Family Information
The lawyer should obtain:
(1) Information confirming the client’s spouse, common-law spouse, companions, or lodgers. The
lawyer should obtain and review marriage contracts, cohabitation agreements, separation
agreements, and court orders.
(2) Information about all the children of the client. Sometimes men may have children with whom
they have had no contact but since the children have never been adopted they have inheritance
rights. Review adoption orders, agreements, and court orders. Discuss loans and/or gifts to
children. Determine whether there are any adult children with disabilities or who are unable to
become financially independent.
(3) Information about other relatives may be required. The client should provide the names and
addresses of their closest relatives who would be entitled to receive notices and copies of the will
pursuant to the Estate Administration Act. An Executor needs to know how to locate the closest
relative of the deceased. If the client does not know who their closest relative is or how to locate
their closest relative, the lawyer should prepare a declaration of the client outlining their family
tree.

G. Discuss the Appointment of an Executor and/or Trustee
The client must understand the responsibilities of an Executor and/or Trustee before appointing
someone to act. The lawyer should discuss the advantages and disadvantages of individuals as opposed
to institutions acting as Executors and/or Trustee.

H. Review the Client’s Assets

A lawyer may need to advise the client that the client requires more legal services than “just a will.”


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## jargey3000 (Jan 25, 2011)

OhGreatGuru said:


> No, but it's a lot easier to contest, and OP's $1M+ is worth fighting over.


where do you get the $1M+ figure...?


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## jargey3000 (Jan 25, 2011)

interesting thread going here...
Im in the "simple" (vs complex) category, I think. everything goes to wife if/when I kick the bucket, and vice-versa.
when were both gone everything goes to our 2 (married) daughters even-steven (or "share and share alike" in lawyerspeak).
Is there a will kit somewhere that'll cover this & I'll just fill in the blanks?

(heheheh...laughing to myself....those last 3 words always bring to mind a local band we had here years ago "Phil 'n' The Blanks" lololo....we also had "Bic & The Ballpoints"..lolo...but, oh dear...I digress....)


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## Mukhang pera (Feb 26, 2016)

jargey3000 said:


> where do you get the $1M+ figure...?


I think it came from post#6:



STech said:


> Speaking of trusts, what the heck are they exactly, and how should it be used? Yes my estate will be north of a million if I pass today.


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## jdc (Feb 1, 2016)

jargey3000 said:


> Im in the "simple" (vs complex) category, I think. everything goes to wife if/when I kick the bucket, and vice-versa.
> when were both gone everything goes to our 2 (married) daughters even-steven (or "share and share alike" in lawyerspeak).
> Is there a will kit somewhere that'll cover this & I'll just fill in the blanks?


Our situation is similar. We used legalwills.ca to do it ourselves.


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## ian (Jun 18, 2016)

We recently updated our wills after a ten year interlude. We engaged a lawyer, as we did 10 years ago.

It is not clear to me why some people are reluctant to engage the services of a professional- lawyer or accountant. Nor is it clear to me why such resentment of a reasonable fee. It costs money to operate an office, pay staff, and take time from billable hours to attend refresher seminars. Ever seen the hourly rate for your local Automobile delearship? I believe that the trick is to search out the right lawyer for the job.

we view these fees from a cost/benefit perspective with the emphasis on benefit. We did however purchase a do it yourself will kit from Staples so that we could understand the process prior to meeting with the lawyer

I have no issue doing some things myself. I probated my mother’s will. It was straightforward to to point that several forms were notorized at the courthouse. (their staff, for a small fee). The kit we purchased in B.C. was excellent...right down to the proper forms.

Should you do your own will? It really depends on your own financial and personal situation. Have you considered POA’s, medical directives, trusts, exucutors, etc? Or how to shield the estate from as much probate tax as possible (if applicable)?


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## humble_pie (Jun 7, 2009)

jargey3000 said:


> Im in the "simple" (vs complex) category, I think. everything goes to wife if/when I kick the bucket, and vice-versa.
> 
> when were both gone everything goes to our 2 (married) daughters even-steven (or "share and share alike" in lawyerspeak).
> 
> Is there a will kit somewhere that'll cover this & I'll just fill in the blanks?




filling in blanks in a will kit could be so penny-wise-but-pound-foolish imho

here for illustrative purposes only are a couple of complications that could mar the simple scenario:

1) jargey alas perishes & a frisky missus J, now proud owner of the jargey fortune, remarries. Upon her death she bequeaths all to the 2nd husband. Boom! that spells The End for mes demoiselles the jargey daughters.

2) or possibly jargey - again alas! - falls into a long-drawn-out stage of ill health during which he is judged incapable of altering his existing will or writing a new one. During the years of his illness not only does missus J pass away but one of his daughters also dies.

since jargey didn't deal with grandchildren or with issues of daughter survivorship in his will kit, his entire estate will now pass to the surviving daughter, leaving any children of the deceased daughter bereft.

a good lawyer will plan to prevent scenarios like the above


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## humble_pie (Jun 7, 2009)

Mukhang pera said:


> Trusts set out in wills - testamentary trusts - are a certain breed of trusts created in a variety of ways and for a variety of purposes. Some are for tax reasons. A typical trust is created to postpone the vesting of a legacy (or a portion). Very often a parent will leave money (or shares, or whatever) to a child, but parcelled out over a period of time.



don't you think though that persons in the know, ie estate planners, lawyers, accountants & others, have an obligation therse days to mention the high cost of professional trustees

trustees are required to follow the Prudent Man rule, ie a very conservative estate management plan, which often means eschewing common stocks & investing an estate's assets in gummint bonds or similar. For years now these have paid zip interest. This means that trustees' high fees will consume all of the income from a typical million-dollar estate. My own rough guess is that an estate portfolio needs to number $10 million or more before it will be able to spin out any income that will be directly payable to the beneficiaries.

i don't think very many folks starting to plan their estates realize the punitively high costs of trusts for grandchildren. Sometimes i think these folks might even imagine that free, zero-cost trustee services are somehow provided by the probate courts ... other parties name family members or friends as trustees for minors' inheritances; but one takes one's risks there.

all in all i think that onlyMO had the right idea. Do ya'll remember it? onlyMO's idea was to give away much of one's wealth to one's beneficiaries during the latter years of one's lifetime. Certainly not all, but a good part.


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## AltaRed (Jun 8, 2009)

+1 to HP's response to Jargey. 

The survivor of Jargey or his wife could change his/her will to a wide range of possibilities never remotely foreseen at this time. One NEVER can be sure what the survivor will do given so many real life examples otherwise. Additionally, adult children can wage war like the Hatfields and McCoys after death of last surviving parent. It is what it is. Do it right for a measly $500 or even $1000 for a will with extra twists!


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## OptsyEagle (Nov 29, 2009)

At least in Jargey's case, the survivor is the true mother of his children and as such one can assume did everything possible for her/their children's benefit. 

It is the case with 2nd marriages where I am surprised how comfortable couples are with verbal agreements where I suspect the majority will not work out that well. Many times these marriages happened when the children were either adults or very close to them. One cannot expect the survivor to have built the type of bond for their deceased spouses children, to fend off not only the new entry into their love life but to overcome or equal the bond that the survivor has for their own children and the desire to see them benefit and financially safe.

The only thing holding that estate plan together is the loyalty for the deceased spouse. Given years of time, the bias towards their own children and any new significant other will almost always overwhelm that loyalty. It is unfortuneate, but true. This has nothing to do with ethics or honesty. It is just human nature.

If you have children from both marriages and you really want all to share in what you both have achieved you must ensure the children of the deceased spouse gets something upon that 1st death. That is about the only time it will be possible. By the way, it does not need to be an equal share, just something of reasonable value. At least that is my opinion, anyway.


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## AltaRed (Jun 8, 2009)

The survivor may well re-marry or live common law. All bets can then get quite complicated with a new spouse in the picture who could end up with a claim on the estate to some extent. It has happened more than once in my extended family. Never, ever assume anything is what it appears to be.


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## STech (Jun 7, 2016)

Thank you everyone, very good discussion. And thank you MP for taking the time to type all that out as well. It was a bit to digest for the lay person, but it was worth the time.


As I said from the onset, I won't DIY this one. I may do it later for an addendum, but not for this first one. When 7 figures are on the line, it's very silly to trust human nature. Yesterday I wrote a will by hand, in my own words, and my wishes for my estate. I had 2 coworkers sign and witness my signature. I'm calling around lawyers and hopefully start the process soon. I don't have multiple marriages, mistresses, or offshore bank accounts, so I hope my situation is simple enough.

Regarding lawyer fees: They are professionals, and deserve to compensated for their time, investment, and liability. To me, $500 or $1,000 is a good investment for a proper will. And trust me, I'm definitely considered a frugal person, and I'd DIY heart surgery if I thought it was the right thing to do. I have worked with lawyers and I thought I got my money's worth, and I have worked with ones where I totally felt I was milked to no end. Some of their fees are simply outrages, but you might feel totally trapped in the situation, and you decide to put up with the pain just to move on. In my opinion, and with all due respect to MP and other good lawyers, the legal system and lawyer fees are very overdue for a disruption. But as HP said, these online kits might very well prove to be penny wise and dollar dumb. 

Regarding controlling from the grave: I believe the absolute best thing to do for a child, is a proper financial education, or maybe some notes for them to read once they get older. And in my opinion, it would be a total disaster to give the child the total estate as soon as they turn 18. I'd think a more prudent idea is to give them some at 25, more at 30, and all at 35 or 40. I remember not too long ago, a case made it all the way the supreme court, because a father left all of his money to 1 of 2 daughters, because the 2nd daughter married a white man. The court overruled the father's will and divided the estate equally, based on racism of the deceased father. Sure that's an extreme case, but none the less, it's futile to dictate to someone how to live their lives or spend their gift.


I still have lots to read and consider. I'll try be well prepared when I meet a lawyer to get this done. I'll update the thread when that happens. Hopefully nothing happens to me until then, but just in case, please tell the courts I said "I leave all to my cat fluffy".


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## jargey3000 (Jan 25, 2011)

AltaRed said:


> +1 to HP's response to Jargey.
> 
> The survivor of Jargey or his wife could change his/her will to a wide range of possibilities never remotely foreseen at this time. One NEVER can be sure what the survivor will do given so many real life examples otherwise. Additionally, adult children can wage war like the Hatfields and McCoys after death of last surviving parent. It is what it is. Do it right for a measly $500 or even $1000 for a will with extra twists!


so..... wills drawn up by high- priced lawyers are ironclad, and never contested? i think not 😈:crushed:


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## STech (Jun 7, 2016)

jargey3000 said:


> so..... wills drawn up by high- priced lawyers are ironclad, and never contested? i think not :crushed:


I'd definitely say that's not the case. You have to go in with the assumption that anything can be contested. There are a million high profile cases that prove that. I think with a lawyer drawn will, many (but not all) of the errors and pitfalls are eliminated. I'd also venture and a say some greedy vulture will think twice about fighting a properly done will, vs them finding out it was home-made and likely to have issues.


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## Pluto (Sep 12, 2013)

I recall a guy, Dave, in BC who owned a radio station and was qjuite well off. He had children, and a second wife, who was not the mother of his children. He also had some serious health issue, heart problems, I think, and died relatively young. Reportely, his will directed that a trust be set up. His wife would get the income from the trust until she died. At that point, the children would get the assets from the trust. However, upon his death, the wife vigerously contested the will and got all the assets. Apparently she squandered it all, and the children got nothing.


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## james4beach (Nov 15, 2012)

Pluto said:


> I recall a guy . . . He had children, and a second wife, who was not the mother of his children . . . However, upon his death, the wife vigerously contested the will and got all the assets. Apparently she squandered it all, and the children got nothing.


Something very similar happened within my extended family. This makes a case for gifting some assets to people while you're living, so you know exactly where the asset goes. Plus, you can see the wealth being enjoyed by the intended recipient.


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## humble_pie (Jun 7, 2009)

STech said:


> Yesterday I wrote a will by hand, in my own words, and my wishes for my estate. I had 2 coworkers sign and witness my signature.



oh dear this is an example of what might go wrong with a DIY will. A holograph will - which is what your handwritten document was supposed to be - never has witnesses. The witnesses go with what's known as a "will drawn in English form" by a lawyer.

it's even possible that the addition of your 2 witnesses was enough to destroy the integrity of your holograph will. 

plus unfortunately you've signed it, so now the document has become, in real life, your own official Last Will and Testament, howsoever flawed it might be.

MP would know how your supposedly holograph will might work or not work if you were to perish tomorrow. But me i'd rather be safe than sorry. I believe i'd destroy that signed attempt at a holograph will. I'd also avoid perishing tomorrow of course.

i think it's a great idea to write up will specimens. Ian also mentioned upthread how he & spouse had purchased a will kit & run through the preparation procedures, all in order to learn something before consulting his chosen lawyer. These are good ideas but, whatever you do, please do not ever sign any test version.

lastly you'd mentioned something about capital to children as late as 40 years of age; while the estate itself rounds to the low 7 figures. This is a perfect example of how the trustees' fees will consume all of the income of a child-benefitting estate portion. There are no free trustees.

a common workaround is a clause in the will authorizing the executor to pay over a minor's inheritance to the "parent, tutor or guardian" of such minor.

what to do with a relatively small portion - by "small" i mean less than several million $$ - when the heirs are between the ages of 18 & 40, i do not know. I agree that 18 is far too young to be inheriting several hundred thousand $$. Does anyone have good workarounds for this dilemma. 

keep in mind that a family member or friend drafted to bear this responsibility for so many years will be assuming a significant burden. They will have to file a trust tax return every year, for one thing. Then there will be the issue of dealing with the heirs between the ages of 18 & 40; some heirs will clamour incessantly for invasion of capital & a well-meaning family member or friend could end up feeling sorely tried.

such a trustee might resign. It's easy enough to do. What's left of the inheritance might then get turned over to the Public Curator ... these are not endings a good-hearted parent would want, as he gets ready to prepare his will.


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## STech (Jun 7, 2016)

Why would having independent witnesses nullify anything? They're not getting a penny from my estate.


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## Mukhang pera (Feb 26, 2016)

humble_pie said:


> don't you think though that persons in the know, ie estate planners, lawyers, accountants & others, have an obligation therse days to mention the high cost of professional trustees
> 
> all in all i think that onlyMO had the right idea. Do ya'll remember it? onlyMO's idea was to give away much of one's wealth to one's beneficiaries during the latter years of one's lifetime. Certainly not all, but a good part.



Yes, I agree about trustee fees. Of course, not all trust interests require professional management. At the same time, even where one appoints one's Tuesday night poker friend(s) as trustee(s), there's a statutory entitlement to remuneration (in BC, under the Trustee Act) and even where one appoints a close family member to administer a simple trust, said trustee can get greedy (note to self: refer this to the current "greedy" thread on cmf) and costs can mount. Here's an example (where "V.", the sister of the "settlor", i.e., the person creating the trust, was appointed trustee):

_Re: Vince Insurance Trust_, 2016 BCSC 1992

*TRUSTS* — Trustees — Remuneration • Passing accounts — Settlor creating a trust, the assets of which were the proceeds of a $2 million policy on his life — V. acting as trustee from June 2010 until July 2014, when removed by court order — In that time, V. loaning most of the funds to a related trust, found to have been an imprudent investment — On court ordered passing of accounts, V. claiming a capital fee of $51,250, being 2.5% of the capital assets realized; an income fee of $46,925 being 5% of the gross income earned by the trust; a care and management fee of $46,481 being 0.4% per annum of the average annual value of the trust property for 6 years, for total fees of $143,656, less $36,977 paid to Canada Trust as her agent — Master allowing a capital fee of 2.5%, an income fee of 2.5%, and a care and management fee of .1%, for a total of $85,350 with no agent’s fee deduction — On beneficiaries’ appeal, court finding the master did not err in allowing V. to recover certain legal, consulting and appraisal costs incurred while she was in a position of conflict of interest, given that no harm, and in fact some benefit, resulted to the trust — Master also not erring in allowing V.’s legal costs incurred in relation to the proceedings to remove her as trustee or in exercising his discretion to determine fair and reasonable remuneration for V. — Record not allowing court to determine whether the master erred in allowing V. to recover certain legal, consulting and appraisal costs in relation to a mortgage given the "loan documentation" obliged the borrower to bear certain costs — Appeal judge remitting that matter to the master to determine, to the extent possible on the record, which, if any, of the contested expenses were expenses that another party was obliged to bear.

https://www.courts.gov.bc.ca/jdb-txt/sc/16/19/2016BCSC1992.htm


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## Mukhang pera (Feb 26, 2016)

STech said:


> Why would having independent witnesses nullify anything? They're not getting a penny from my estate.


No, I do not think it will "nullify" anything. But it's not, then a true "holograph" will. In BC, it would likely be valid under the Wills, Estates and Succession Act. I would look at the Ontario legislation, which should set out the basic requirements for drawing a valid will. I see nothing in the BC Act that would have the effect of rendering invalid a handwritten will, by virtue of having been witnessed.

I would also pay attention to hp's post #31, above. It contains some food for thought.


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## humble_pie (Jun 7, 2009)

Mukhang pera said:


> Yes, I agree about trustee fees. Of course, not all trust interests require professional management. At the same time, even where one appoints one's Tuesday night poker friend(s) as trustee(s), there's a statutory entitlement to remuneration (in BC, under the Trustee Act) and even where one appoints a close family member to administer a simple trust, said trustee can get greedy (note to self: refer this to the current "greedy" thread on cmf) and costs can mount. Here's an example (where "V.", the sister of the "settlor", i.e., the person creating the trust, was appointed trustee):
> 
> _Re: Vince Insurance Trust_, 2016 BCSC 1992
> 
> ...




what a hair-raising example. The text above doesn't mention who the beneficiaries were but one might imagine they were the children of the settlor, who had believed that his sister "V" would look admirably after her nieces & nephews.

there was a CMF thread some years back in which parents of teen-aged kids asked how their offspring could be kindly looked after in a circumstance where both of the parents might die, for example in a common accident.

the thread concluded that there were not really any first-rate fool-proof options, so all in all it was better to not die in the first place, at least not until the offspring had attained the age of at least 21 years.

keep in mind that, for the grim scenario to unfold, the children have to be orphans. Both parents need to have perished. If one parent survives, he or she will care for the children as usual, will also inherit the estate; so apart from the trauma of early partner loss all will be well.


ps in my neck of the woods there's no sign of a personal executor ever even dreaming of charging a fee, although they are allowed to hire professional managers. If i were involved in such a situation - ie if i were an heir & the homemade amateur executor was planning to personally charge a professional fee - i'd see to it that a professional would be hired to do all the work & no double fees would be allowed ...


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## Mukhang pera (Feb 26, 2016)

humble_pie said:


> what a hair-raising example. The text above doesn't mention who the beneficiaries were but one might imagine they were the children of the settlor, who had believed that his sister "V" would look admirably after her nieces & nephews.


hp, I provided a link to the full text of the judgment, as I always do when citing cases here, so folks will know I am not making this stuff up. I also do it for anyone who wants more detail. I went back to the judgment and here's the part that describes the beneficiaries:

[6] The Insurance Trust was settled by William Vince on March 2, 2007. Marilyn Vince, the original trustee, was William Vince's sister. Mr. Vince died on June 21, 2008 and shortly thereafter the proceeds of three life insurance policies, in the approximate amount of $2 million, were received by Marilyn Vince as trustee of the Insurance Trust. Initially, these funds were invested with the assistance of Canada Trust Company but Ms. Vince became dissatisfied with the performance of Canada Trust and assumed control of the funds herself.

[7] In addition to the Insurance Trust, Mr. Vince settled another trust known as the William Vince Family Trust (the "Family Trust"). Marilyn Vince was also the trustee of the Family Trust. The original assets of the Family Trust were the shares of three companies that Mr. Vince incorporated to purchase properties located at 301, 319 and 325 Main Street in Vancouver.

[8] The beneficiaries of the Insurance Trust are Cynthia Miles (who was Mr. Vince's wife) and Mr. Vince's three children. The beneficiaries of the Family Trust are Mr. Vince's three children. In other words, Ms. Miles is a beneficiary of only the Insurance Trust whereas the children are beneficiaries of both trusts.


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## Eclectic12 (Oct 20, 2010)

humble_pie said:


> ... ps in my neck of the woods there's no sign of a personal executor ever even dreaming of charging a fee ...


Perhaps these personal executors have no experience?

I believe it is just about all my relatives who started out with the no fee policy but as the hassle of dealing with the various financial institutions, CRA and discovering that at times, what they were reassured would work turned out to be bad info ... about half took a fee.


Cheers


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## jargey3000 (Jan 25, 2011)

my uncle named me, and another person , to be co-executors of his somewhat complicated will.
he stated in thr will that we were to serve as executors without compensation. ( i forget the precise wording.. ) we were bound by that. the other chap resigned after a couple of years.....


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## humble_pie (Jun 7, 2009)

Eclectic12 said:


> Perhaps these personal executors have no experience?
> 
> I believe it is just about all my relatives who started out with the no fee policy but as the hassle of dealing with the various financial institutions, CRA and discovering that at times, what they were reassured would work turned out to be bad info ... about half took a fee.



sure it's a hassle. It's easier for the professionals, in most cases a law firm's secretaries handle most or all of an estate admin work.

what it boils down to is the testator himself. He or she needs to be involved in this decision. If his nearest & dearest are bumbling administrators, he might want to name a professional in the first place. For greater flexibility he could name his spouse plus a professional firm as co-executors but include in text the provision that spouse can replace the professional with another professional at all times.


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## humble_pie (Jun 7, 2009)

jargey3000 said:


> my uncle named me, and another person , to be co-executors of his somewhat complicated will.
> he stated in thr will that we were to serve as executors without compensation. ( i forget the precise wording.. ) we were bound by that. the other chap resigned after a couple of years.....



& just imagine if you had resigned yourself! you uncle should have thought more about what he was doing

herein a warning to all testators ... don't try to control from the grave


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## OptsyEagle (Nov 29, 2009)

jargey3000 said:


> my uncle named me, and another person , to be co-executors of his somewhat complicated will.
> he stated in thr will that we were to serve as executors without compensation. ( i forget the precise wording.. ) we were bound by that. the other chap resigned after a couple of years.....


I would have resigned about 6 seconds after I read that statement. If he could care less about my time, I could care less about him.


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## OnlyMyOpinion (Sep 1, 2013)

Can a will like jargey had to deal with legally prevent the executor from fair compensation? Istm that might be something a court would be willing to overturn?


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## humble_pie (Jun 7, 2009)

OnlyMyOpinion said:


> Can a will like jargey had to deal with legally prevent the executor from fair compensation? Istm that might be something a court would be willing to overturn?



... except that a peaceable family member who is just trying to be helpful might not want to take on the extra burden of a legal struggle that might even proceed all the way to the newfoundland superior court


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## Mukhang pera (Feb 26, 2016)

I cannot recall ever seeing a case involving a "no fee" provision in an instrument such as a well or deed of trust. However, the law in BC at least seems to be clear that the words of the will, or other instrument, will prevail. See s. 90 of the Trustee Act, below.

From the BC Trustee Act:

*Setting remuneration of trustees and guardians*

88 (1) A trustee under a deed, settlement or will, an executor or administrator, a guardian appointed by any court, a testamentary guardian, or any other trustee, however the trust is created, is entitled to, and it is lawful for the Supreme Court, or a registrar of that court if so directed by the court, to allow him or her a fair and reasonable allowance, not exceeding 5% on the gross aggregate value, including capital and income, of all the assets of the estate by way of remuneration for his or her care, pains and trouble and his or her time spent in and about the trusteeship, executorship, guardianship or administration of the estate and effects vested in him or her under any will or grant of administration, and in administering, disposing of and arranging and settling the same, and generally in arranging and settling the affairs of the estate as the court, or a registrar of the court if so directed by the court thinks proper.

(2) The court or a registrar of the court if so directed by the court, may make an order under subsection (1) from time to time, and the amount of remuneration must be allowed to an executor, trustee, guardian or administrator, in passing his or her accounts, in addition to any other allowances for expenses actually incurred to which the trustee, executor, guardian or administrator may by law be entitled.

(3) A person entitled to an allowance under subsection (1) may apply annually to the Supreme Court for a care and management fee and the court may allow a fee not exceeding 0.4% of the average market value of the assets.

*Application for remuneration
*
89 The court may, on application to it for the purpose, settle or direct the registrar to settle the amount of the compensation, although the estate is not before the court in an action.

*Application*

90 Nothing in section 88 or 89 applies in any case in which the allowance is set by the instrument creating the trust.

But, as others here have suggested, seeking to conscript an executor to act gratis might just see said executor very quickly renouncing. If no other qualified alternate, willing to act for free, can be found, then likely the Public Guardian and Trustee will be appointed and the PGT won't act for free. Moreover, if the new executor is to be anyone other than an alternate named in the will, the appointment must be made by the court and attending to that task won't be free.


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## Beaver101 (Nov 14, 2011)

OnlyMyOpinion said:


> Can a will like jargey had to deal with legally prevent the executor from fair compensation? Istm that might be something a court would be willing to overturn?


 ... I think so. But does jargey actually have to apply to the court to get compensation? I mean it's not like his dead uncle was able to take his money or his Monet masterpiece with him.


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## OhGreatGuru (May 24, 2009)

Beaver101 said:


> ... I think so. But does jargey actually have to apply to the court to get compensation? I mean it's not like his dead uncle was able to take his money or his Monet masterpiece with him.


I think the answer would be that if he takes the money without authorization, any of the beneficiaries could challenge it. (breach of trust?) You are not obliged to accept the duty of being an executor. If you refuse, eventually it will go to probate court to appoint an executor. The probate court will (usually) search for other family members of the deceased whom they can appoint, because a professional executor will be more expensive. At that point, you could tell the court "I would be willing to do it provided you overrule the will and authorize me to charge reasonable & customary fees".

Although personally I think I would not want to be involved in such a will, because the estate is likely to have too many other unwelcome surprises in it.

PS to jargey: Was you uncle's will prepared by a lawyer? I would like to think a lawyer would not agree to endorse such a restriction.


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## Eclectic12 (Oct 20, 2010)

humble_pie said:


> sure it's a hassle. It's easier for the professionals, in most cases a law firm's secretaries handle most or all of an estate admin work.
> what it boils down to is the testator himself. He or she needs to be involved in this decision ...


The testator can dream that I'd be willing to agree to be an executor for no fee or at a long distance. They'd almost always be wrong though.


Cheers


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## Eclectic12 (Oct 20, 2010)

OhGreatGuru said:


> Beaver101 said:
> 
> 
> > ... I think so. But does jargey actually have to apply to the court to get compensation? I mean it's not like his dead uncle was able to take his money or his Monet masterpiece with him.
> ...


I would expect so. If it was beneficiaries that wouldn't know the difference like say a pet, one might be able to take some without some other party like a bank clerk or whatever flagging that it isn't kosher.

What my aunt experienced was that the testator knew she liked a piece of jewelry. Instead of just leaving it to her as part of the will, she put it in with a wording that replaced the usual executor fees with the jewelry. My aunt, after she had wound everything up thought it was ludicrous how the more reasonable executor fee had been replaced with the less valuable jewelry.


Cheers


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## OnlyMyOpinion (Sep 1, 2013)

Perhaps jargey was dealing with one of those nasty DIY, fill-in-the-blanks wills. 
Completed thus: _"My Trustee is to receive compensation equal to  Zero (0%)  of the net value of my estate."_ :apologetic:


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## OptsyEagle (Nov 29, 2009)

It's not the decision of the person writing the will. This is the executors decision. If the executor DECIDES to not take a fee, they become the more generous person and feel good about themselves. If the will writer decides it, it is just wrong on so many levels. 

This is obviously something that should be decided before death. A friend of mine asked me a few weeks ago if I would be his executor. He has never been married nor has children. Only a brother who he says is not very good with money and he has a couple nieces. 

He asked how much I would want, and I quickly said 3%. Less then the 5% standard but not nothing. I said leave me 3% in your will and I promise not to take an executors fee. I did this for two reasons. It is a lot of work. Sorry, I want 3% for my time. I suspect it would work out to maybe $10,000. 2ndly, executor fees are taxable but a bequeath is tax free. So leave me 3% in your will and I will be your executor for free.

I was happy with this and he was happy with this. Seemed fair to me.


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## Beaver101 (Nov 14, 2011)

^ Would seem to be fair but couldn't his brother challenge the 3% from the will that'll be bequeathed to you? How would your friend set this up in his will, without naming you as a 3% interest beneficiary? 

In jargey's case, I assumed the executor is also the beneficiary (jargey) in which case no executor fees provided.


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## STech (Jun 7, 2016)

So I booked an appointment with a lawyer in a few days. It's gonna cost me about $450 (incl HST), and that includes the will, and POAs. I'm happy with that fee, and it's a peace of mind that it'll be done properly. I have a few days to think about all the finer details, and talk with the proposed executors, etc.. Lots to consider for sure, and I'm surprised to hear anyone would ask trust executors to work for free, geez. Even in my hand written will, I left a nice gift for my executors, plus all of their expenses.


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## Eclectic12 (Oct 20, 2010)

My guess is that those wanting executors to work for free think it is easy and have no experience with the many wrinkles and possibly hassles.

My uncle thought everything was covered off by his lawyer drawn up POA when he asked my aunt and mom to get something for him from his safety deposit box while he was in the hospital. The FI said it wasn't there POA that their lawyer had approved so the suggestion was to get my uncle to sign theirs for speedy access. If not, a copy would be sent to head office for lawyer review with average times for a response being six weeks.

Fortunately, one of the staff heard my sister's name and pointed out that my uncle had left her with access to the safety deposit box so my sister could access it directly.


Cheers


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## OptsyEagle (Nov 29, 2009)

Beaver101 said:


> ^ Would seem to be fair but couldn't his brother challenge the 3% from the will that'll be bequeathed to you? How would your friend set this up in his will, without naming you as a 3% interest beneficiary?
> 
> In jargey's case, I assumed the executor is also the beneficiary (jargey) in which case no executor fees provided.


He would name me as a beneficiary for the grand total of 3%. That is the idea. It is the same amount but avoids the tax.

On what grounds would his brother challenge it. Even if he did and succeeded, I would then just bill the estate for 5% executor fees and probably after tax I would be a little ahead...and he would be down exactly 2% for being stupid. I doubt he would do this once it was explained. The fact that he did not know any of it should help him understand why his brother would select me over him.


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## Saniokca (Sep 5, 2009)

Great thread - We're about to start looking at wills/POAs. In my case it's hopefully simple - a wife, two children, just over 1M in stocks/cash and about 100k in pension value (DB&DC). Main concern really is how to shield money from second marriages so that some goes to our kids in case one of us dies and the other remarries. Secondary is what happens if we both die - both kids are under 3 at the moment.

Thanks to all the contributors.


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## OptsyEagle (Nov 29, 2009)

Saniokca said:


> Great thread - We're about to start looking at wills/POAs. In my case it's hopefully simple - a wife, two children, just over 1M in stocks/cash and about 100k in pension value (DB&DC). Main concern really is how to shield money from second marriages so that some goes to our kids in case one of us dies and the other remarries. Secondary is what happens if we both die - both kids are under 3 at the moment.
> 
> Thanks to all the contributors.


Let us know how you work that out. That is the big problem. I don't think there is a solution. Mine is to simply tell my wife that bias will always play a part in a persons future decisions and if given enough time, it will really start to feel like it is all her money. It was not. 

The best I can hope for is that she understands that some things that sounds like they make sense are all coming from bias, which is normal, but you need to ask "what would I say about this decision"...or you could not care. That is up to you. 

This will not a really big problem for me. In my case, I have no children, so the people she would shaft, if she decides to go that way, will be siblings/nephews/nieces. I know I am not in their wills so I can live if they get nothing from mine...but at least she knows. I think most people are very ethical. It is just that they do not completely understand how BIAS can make the wrong decision sound so right. You probably had to be in commission sales to know that. It is amazing how the brain can fool us.


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## OnlyMyOpinion (Sep 1, 2013)

I think the prospect of a significant windfall can subvert otherwise ethical people.
A good lawyer will be familiar with the needs of a young family, determining and documenting your wishes. Sanoikca will want to have wills that place part of the estate in trust for her children in the event her spouse predeceases or fails to survive by 30 days, along with a reliable estate trustee, and a trusted guardian (and alternate) for the children. Discuss this with your proposed guardian to make sure they are agreeable. Review and revise with major life events, including children reaching age of majority.
Its like insurance, you need to plan for events that are unlikely to occur but are still (unfortunately) possible.


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## jargey3000 (Jan 25, 2011)

OnlyMyOpinion said:


> Perhaps jargey was dealing with one of those nasty DIY, fill-in-the-blanks wills.
> Completed thus: _"My Trustee is to receive compensation equal to  Zero (0%)  of the net value of my estate."_ :apologetic:


hahaha...No. but full disclosure: we were both also beneficiaries in the will....and I guess he figured "that's enough !"
anyway, glad to report, the will survived, with no lawsuits, or any family members falling out etc. etc.
not every family is out to screw each other!


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## twa2w (Mar 5, 2016)

I have seen several wills over the years that granted a bequest in lieu of executors fees.

Normally they are worded somewhat as follows but in legalese

I grant Bob Smith, my executor, $ 5,000 (or some %) providing he agrees to forego executors fees.

This forces the executor to make a decision - accept the tax free bequest or charge executor fees and pay tax. Accepting the bequest in this manner usually does not preclude the executor from being able to recover from the estate reasonable expenses incurred in administering the estate.


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## ian (Jun 18, 2016)

I spent some time with a lawyer in Vancouver. He was handling a small issue for my deceased father. He was very interested in what made my parents decide to get their wills, POA’s done. My parents were not wealthy-their estate was in the $700k range. They had the wills prepared ten years previous by a different practiser.

His reason for asking was his firm saw many survivors dealing with no or poor will situations. His concern was not that they spent far more money settling the estate. The biggie that he saw was the psychological/emoticon toll that this oftentimes two year process took on some families.

The other interesting tidbit was that the Royal Bank froze the safety deposit box and the accounts once we submitted the death certificate. We were allowed into the box after the accountant saw the will. They also insisted that both beneficiaries be present when the box was emptied. No surprises...just some paperwork and an antique pocket watch.


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## jdc (Feb 1, 2016)

ian said:


> The other interesting tidbit was that the Royal Bank froze the safety deposit box and the accounts once we submitted the death certificate. We were allowed into the box after the accountant saw the will. They also insisted that both beneficiaries be present when the box was emptied. No surprises...just some paperwork and an antique pocket watch.


I wonder what would have happened if the original will was in the safety deposit box.......


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## OhGreatGuru (May 24, 2009)

This type of thing has arisen on other threads. I think they allow you to open the box under supervision, to ensure that you only take out what you need. My Dad had a widow friend who encountered this "catch 22" with a jointly-owned SDB, and when he made his SDB joint with me, he told me to "Empty out the SDB before you tell he bank I am dead." (The catch of having beneficiaries present can be tricky if some of the beneficiaries live a long ways away. That's a new one on me. "Phone call to son in New Zealand: sorry to tell you this, but the bank says you have to fly back here to witness the removal of your Pa's watch from the safe deposit box"). But the SDB can contain a number things the Executor needs (Life Insurance policies for example) or things the survivor needs (passport and ID's if they have trips scheduled, securities.). It's potentially a real nightmare, because the banks' lawyers are afraid of their liability if assets disappear.


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## twa2w (Mar 5, 2016)

Most banks will allow access to the box by next of kin. (spouse, children). The access will be supervised and nothing can be removed. The contents will be itemized. If there are documents such as the will, they will allow you to photocopy it.

Once the bank ascertains who the executor is then they will proceed from there.

I have never heard of a bank insisting all the beneficiaries be there - how do they know who the bennies are unless you have a will. If there is a will that is available before entrance into the box, then the executor on that will is the one with the legal right to review contents.

There are a number of ways to set up access to a safe deposit box. Depending on the wording a survivor may or may not have access after the death of one party. Make sure you are clear when you get your safe deposit box.


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## birdman (Feb 12, 2013)

2 brief comments from a couple of recent posts:

1. In regards to protecting assets after you die my lawyer said "you cannot control things from your grave" which I posted earlier.
2. Safety Deposit Boxes:Normally not a big issue but as we have the utmost trust in our grown children we opened a Saftey Deposit Box in both their names with ourselves as agent. Keep a few important papers in there like Net Worth statement and location of all assets, Will with POA etc, Birth certificates, some coins and gold.


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## birdman (Feb 12, 2013)

2 brief comments from a couple of recent posts:

1. In regards to protecting assets after you die my lawyer said "you cannot control things from your grave" which I posted earlier.
2. Safety Deposit Boxes:Normally not a big issue but as we have the utmost trust in our grown children we opened a Saftey Deposit Box in both their names with ourselves as agent. Keep a few important papers in there like Net Worth statement and location of all assets, Will with POA etc, Birth certificates, some coins and gold.[/QUOTE]


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## jargey3000 (Jan 25, 2011)

[QUOTE

PS to jargey: Was you uncle's will prepared by a lawyer? I would like to think a lawyer would not agree to endorse such a restriction.[/QUOTE]

funny sidenote....uncle's will was prepared by one of the more prominent lawyers in our towm..QC , well- respected etc...
He pre-deceased uncle, and, because he was a shareholder in uncle's business, we had to get a copy of his ( the lawyer's) will when uncle died ( to see who got his shares). His will was written out longhand.....on the back of a brown paper bag! 
I kid you not! I'll never forget that!


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## Mukhang pera (Feb 26, 2016)

frase said:


> 1. In regards to protecting assets after you die my lawyer said "you cannot control things from your grave" which I posted earlier.


I find that comment a bit trite. A will certainly controls things from the grave - the devolution of one's estate. 

However, modern law _limits_ the extent to which one may control from the grave. Rules against remoteness of vesting come to mind. Best known is the _The Rule Against Perpetuities_. It is designed to prevent a trust from lasting indefinitely. It prescribes the maximum period within which the interest of a beneficiary is required to vest. The common law rule (historically described as the “modern rule” and more recently as the “unreformed rule”) stipulates that this period is the lifetime of one or more persons living when the trust is created, plus 21 years. In BC, there is also a statutory maximum of 80 years (Perpetuity Act, R.S.B.C. 1996, c. 358). 

The above is reproduced from WILLS AND ESTATE PLANNING BASICS—2015 UPDATE - Trust Basics, published by the Continuing Legal Education Society of B.C.

The definition I learned in law school was: "An interest must vest, if at all, within 21 years of a life in being at the time of its creation." I also learned that one device to stretch that period is to use a "Royal Lives Clause" which provides that the interest must vest within the lifetime plus 21 years of the last living descendant of a British monarch who was alive when the trust was created. I have never encountered one (nor a "president's lives clause" or other variant. But the notion is interesting.


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## OptsyEagle (Nov 29, 2009)

I think the issue is that many people seem to believe that they are better with money then the beneficiaries who they give it to and therefore think they should control everything from the grave. Since they have money, they are probably right on the first assumption but at the end of the day, it would be best if they just let go. It is better if you embrace the fact that once you go flatline, you have no more need for money and it is no longer yours. 

Let the beneficiaries ether do what they want or don't give it to them at all. All controlling from the grave will do is create enemies after death. That matters more to some then others but it is what happens. Unless there is a serious issue like a son who is a drug addict or a daughter-in-law that is a proven gold digger or something of that nature, then I would suggest, you just let the money go.

But that is me.


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## STech (Jun 7, 2016)

Update: So I sat with my lawyer earlier this week and signed all the paperwork. Will, POA for property, and POA for personal care, all done for $475. Sure it seems like a bit of money for some papers, but I think it's worth it. He took about an hour and explained the ins and outs, answered my questions and made some suggestions. He'll also store the original will at his office vault for no charge.

Like I mentioned at the start, this isn't something I'd consider doing with an online form. Lawyers make ridiculous amounts of money off of people fighting. It's much smarter to pay a bit upfront, than a tonne later.


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## OnlyMyOpinion (Sep 1, 2013)

STech said:


> Update: So I sat with my lawyer earlier this week and signed all the paperwork. Will, POA for property, and POA for personal care, all done for $475. Sure it seems like a bit of money for some papers, but I think it's worth it. He took about an hour and explained the ins and outs, answered my questions and made some suggestions. He'll also store the original will at his office vault for no charge.
> 
> Like I mentioned at the start, this isn't something I'd consider doing with an online form. Lawyers make ridiculous amounts of money off of people fighting. It's much smarter to pay a bit upfront, than a tonne later.


:encouragement: Thanks for the update. 
We're a ways off (we hope), but I also found it valuable that my Dad took me in on one visit to personally meet his lawyer and office staff (office conveniently in an old bank branch with its own vault). I greatly appreciated this when the time came to have to deal with his (and Mom's) will and estate. In any event, important for executor to know who and where documents are.

I was a bit surprised when doing our own, that our lawyer gave us the original for safekeeping, including affidavits of witness (for eventual probate). Apparently the rationale being that people move around much more, change lawyers, etc.


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## AltaRed (Jun 8, 2009)

OnlyMyOpinion said:


> I was a bit surprised when doing our own, that our lawyer gave us the original for safekeeping, including affidavits of witness (for eventual probate). Apparently the rationale being that people move around much more, change lawyers, etc.


That is an increasingly more common practice for the reasons you cite. Also, people who had a will done 30 years ago may never know where that lawyer's files went in the case of a firm (or lawyer) going defunct. Legal firms have fires too.


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## STech (Jun 7, 2016)

AltaRed said:


> That is an increasingly more common practice for the reasons you cite. Also, people who had a will done 30 years ago may never know where that lawyer's files went in the case of a firm (or lawyer) going defunct. Legal firms have fires too.



My lawyer's office vault is rated for 8 hours of fire. He said if they move, they'll let all their clients know obviously. And if they go bankrupt, then the law society takes over the files. At any point, I can go and get the original will, so can my executors if I pass. In the meantime I have a copy at home, and I have told my executors where the law office is. I think the original is better stored there than my house.


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## twa2w (Mar 5, 2016)

I recommend that an affidavit of execution be done, by the witnesses to the will, at the time of signing. Sures saves time and effort later to not have to track down witnesses or to sign documents stating witnesses are not alive etc. Much more common to do this than it used to be.
Second, some people recommend the lawyer prepare a notarized copy of the will rather than a simple copy. You keep one and he keeps one. Banks etc are usually comfortable working with a notarized copy. Not sure about the courts though as this may depend on the province..
It can speed things up in dealing with some issues, especially if the lawyers office has closed, merged etc. and they held the original.
The issue with lawyers notifying you if they move is that most people don't stay in touch with the lawyer. 15 years down the road, you may have moved twice and the lawyer sents the notice out to your 2X removed old address. Believe me, they won't spend anytime following up returned mail. If they retire, and then you die, your heirs may not even know what lawyer you used or if you even have a will, if the lawyer keeps it. If they know the lawyers name, they will gave the hassle of contacting the law society to find out where the old files are- with the law society or did another firm take them over.


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## AltaRed (Jun 8, 2009)

There are certainly delays if the original lawyer is not around. 

Regarding affidavits of execution, I know AB requires them....we had to hunt down the original lawyer who was fortunately still alive when probating my mother's will to get an affidavit of execution. Wonder about other provinces.

I've seen mixed materials out of BC regarding the need for an affidavit of execution. Obviously a holographic will will not necessarily have witnesses, never mind an affidavit of such.


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## twa2w (Mar 5, 2016)

AltaRed said:


> There are certainly delays if the original lawyer is not around.
> 
> Regarding affidavits of execution, I know AB requires them....we had to hunt down the original lawyer who was fortunately still alive when probating my mother's will to get an affidavit of execution. Wonder about other provinces.
> 
> I've seen mixed materials out of BC regarding the need for an affidavit of execution. Obviously a holographic will will not necessarily have witnesses, never mind an affidavit of such.


True but in BC a holographic will is no longer valid if I recall correctly.


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## RussT (Jul 11, 2016)

Back in the day it wasn't common to prepare affidavits of execution...

When my father passed away I had to help my mother who was the executor. My mother was totally incapable of handling this so I was the de facto executor. It is a lot harder to help an elderly executor than it is to be an executor. (Thanks, dad.)

My father had prepared his will some 50+ years earlier when he joined the army as was required by army rules. The two witnesses were army office clerks. There were no affidavits of execution by the witnesses.

When my dad died I had to find at least one of the witnesses. (Thanks, dad.) It took some time and considerable sleuthing, but I found someone in a nearby city who had the same name as one of the witnesses and who had been at the same basic training camp at the time my dad's will was prepared. He was still of sound mind. He remembered witnessing some wills. He agreed to meet me, I showed him the will and he recognized his signature. We immediately went across the street to a law office and had the affidavit prepared.

We all need a little dumb luck once in a while.


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## Mukhang pera (Feb 26, 2016)

AltaRed said:


> I've seen mixed materials out of BC regarding the need for an affidavit of execution. Obviously a holographic will will not necessarily have witnesses, never mind an affidavit of such.


Not sure why there should be any "mixed materials". Anyone with internet access can look up the Wills, Estates and Succession Act [WESA], [SBC 2009] c. 13. It provides, in part:

*How to make a valid will*
37 (1) To be valid, a will must be

(a) in writing,

(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and

(c) signed by 2 or more of the witnesses in the presence of the will-maker.

(2) A will that does not comply with subsection (1) is invalid unless

(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],

(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or

(c) it is valid under another provision of this Act.


Seems plain. No need for affidavit of witness, acknowledgment of maker, or any of those.

When you say: "a holographic will will not necessarily have witnesses", I would go further and say it, of necessity, will have no witnesses. In legal circles, a holograph will is generally understood to be entirely handwritten and signed by the testator, but not witnessed. Under s. 37 of WESA, cited above, if it is witnessed and is in writing, it's just an ordinary will. 



twa2w said:


> True but in BC a holographic will is no longer valid if I recall correctly.


True, but not invalid beyond redemption, either. A holograph will may be saved under s. 58 of WESA. For a thorough airing of the topic, see the following June 2015 publication of the Continuing Legal Ed. Soc. of BC:

WESA: ONE YEAR (AND A FEW MONTHS) LATER PAPER 4.1

_The Identifiable Testamentary Intention: Holograph Wills and Other S. 58 Records_


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## AltaRed (Jun 8, 2009)

Mukhang pera said:


> Seems plain. No need for affidavit of witness, acknowledgment of maker, or any of those.


Good to hear. I've sen the Affidavit issue on a few websites purporting the need for an Affidavit, but never checked the Act myself.


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## Mukhang pera (Feb 26, 2016)

RussT said:


> My father had prepared his will some 50+ years earlier when he joined the army as was required by army rules. The two witnesses were army office clerks. There were no affidavits of execution by the witnesses.
> 
> When my dad died I had to find at least one of the witnesses.


I am a bit curious as to the province in which this occurred and why it was necessary to seek out a witness to a will made 50 years before. Was there a court proceeding afoot to prove the will in solemn form? If so, why?


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## AltaRed (Jun 8, 2009)

Mukhang pera said:


> I am a bit curious as to the province in which this occurred and why it was necessary to seek out a witness to a will made 50 years before. Was there a court proceeding afoot to prove the will in solemn form? If so, why?


I had to have that done with my mother's estate in 2015 in Alberta. Fortunately the lawyer of the estate was able to find the lawyer that did the will in 1978, and he was still alive and of sound mind, if not body.


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## AltaRed (Jun 8, 2009)

duplicate deleted


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## STech (Jun 7, 2016)

My lawyer never mentioned anything about the affidavit of execution, and he seemed very knowledgeable and been doing wills and estate planning for decades. Him and the law clerk were the witnesses to my signing. I could fire off an email and ask if an affidavit of execution is necessary, but I'm kinda doubtful it's required.

As aside, I asked about the whole phenomena of people contesting a will, and having the estate cover all the costs. He said judges have caught onto this, and more and more are making frivolous claimants responsible for all court costs. If a claim is valid, and seemed like it had a good chance of success, then the estate will have to pay the costs.


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## OnlyMyOpinion (Sep 1, 2013)

As I understand it, the affidavit is a precaution in the event that the court requires it before before they will probate (validate the will & executor) in the future.

If your lawyer is holding onto the original, they would presumably be able to vouch for the witnesses/validity of the will when the time comes.


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## AltaRed (Jun 8, 2009)

Forty years later, that lawyer and even witnesses could be dead. Guess the real point is some provinces require it and others don't.


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## RussT (Jul 11, 2016)

Mukhang pera said:


> I am a bit curious as to the province in which this occurred and why it was necessary to seek out a witness to a will made 50 years before. Was there a court proceeding afoot to prove the will in solemn form? If so, why?


That was in Ontario, and it was 26 years ago. I don't remember now why I needed to get the affidavit. My hazy recollection is that it was helpful in avoiding some other complicated legal issues. There was no estate - all assets were jointly held with my mother. I seem to recall having to register the will at city hall and that having at least one affidavit of execution greased the wheels. The office in city hall may have been a court office. I'm pretty certain the alternative was very unappealing to me. Sorry, I wish I could answer more fully.


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## Mukhang pera (Feb 26, 2016)

Thanks RussT. I just asked because your experience seemed a bit unusual compared to what I have been accustomed to in BC.


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## RussT (Jul 11, 2016)

Mukhang pera said:


> Thanks RussT. I just asked because your experience seemed a bit unusual compared to what I have been accustomed to in BC.


Don't pay too much attention to anything I say. I'm a rank amateur when it comes to estate issues.


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## Johnhurson (Feb 21, 2019)

If you want to draft a will with proper direction and without any error then i would recomend taking help of professional estate planners or financial advisors. They will guide you in a best possible way to draft a will, what to declare exact legal nuance, taxes, and all the assets in your will pass into a testamentary and on other legal matters.


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## STech (Jun 7, 2016)

So I called the lawyer back and asked about the affidavit. Turns out it was already done for me, and included in the envelope stored in the vault. This is standard practice, and there's a chance they mentioned it to me and I missed the reference. It certainly sounds like a precautionary measure to have the affidavit, but its good to have.


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## yyz (Aug 11, 2013)

STech said:


> So I called the lawyer back and asked about the affidavit. Turns out it was already done for me, and included in the envelope stored in the vault. This is standard practice, and there's a chance they mentioned it to me and I missed the reference. It certainly sounds like a precautionary measure to have the affidavit, but its good to have.


Trust me your executor will be glad to have it.


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## ian (Jun 18, 2016)

We updated and re-wrote our previous wills about two years ago. Lots of changes. I have no doubt that we will be doing the same at some point before the current will is ten years old or so.


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## jargey3000 (Jan 25, 2011)

May is Free Wills month apparently....
https://m.facebook.com/fwmcanada/


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## ian (Jun 18, 2016)

Wills are important. If you happen to live in a province with estate taxes/probate fees you can save your estate tax by understanding what is necessarily to have assets flow to your heirs without having to include them in probate and thus pay tax on them.

http://blog.taxresource.ca/tax-rates/probate-fees-by-province/


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## Retired Peasant (Apr 22, 2013)

In the recent budget, Ontario eliminated the $5/1000 on the first $50000 probate.


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