# Wills, Probate - Advice & questions?



## jargey3000 (Jan 25, 2011)

I know I can google all this stuff, or whatever, but I also like some of the sage advice (Humble Pie aside!) I get in here at CMF. (just kidding HP, old bean...:sneakiness
Sooo....wife & I are both 60+, married forever, retired, 2 grown married daughters. We've never had wills.
I know. I know...what most of you are saying....& you're prob. right. But a) I'm the world's worst procrastinator, and b) I've had a life-long aversion to going anywhere NEAR a lawyer!
So, here we are. Our assets include the usual: own home, 2 cars, possessions etc. Bank accounts, Investment accounts, RRSPs, TFSAs. Nothing exotic. Virtually everything is held jointly with wifey. Let's just say the whole bundle is worth in the 7 figures?
I think we need to get Wills. Our wishes would be: if one dies before the other, leave everything to spouse. When we've both kicked da bucket, leave estate to our 2 children equally, even-steven, share & share alike.
Is it feasible to make out our own wills in our situation? (ie avoid lawyers), use a will kit or whatever? If so where / how do we start? Or what? I'd appreciate any input /comments. Maybe from others in same or similar boat? Or anyone.
Also any advice on Probate or Probate fees? What is it exactly? And more importantly - how does one plan to AVOID any probate fees?


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## pwm (Jan 19, 2012)

If everything is joint, then the will does not require probate because no estate comes into existence. When my dad died everything was then owned by my mother. When she died everything was jointly owned by me, so I was the new owner of her assets. That included investment accounts, bank accounts etc. I had already wound down her RRIF before she died. No lawyer was required for anything.

No probate fee, no lawyers fees no cost of any kind. I am an only child so it was easy for me.


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## NorthernRaven (Aug 4, 2010)

You'll probably want to indicate what province you are in. Probate fees are capped in places like Alberta ($525), other province have varying percentages up to about 1.5% for Ontario, I think, which is more like s small tax. You can avoid certain things like RRSPs being valued for probate by having a designated beneficiary, as well as by joint ownership. Other than that, your dislike of lawyers (to set up complicated trusts or other avoidance vehicles) will conflict with your dislike of probate fees! You may not want to sweat a few dollars going to the province. 

Without a will, your provincial succession laws would take effect. Probably pretty close to what you would do with a will, but I think most places would, after giving the surviving spouse a certain chunk, include your daughters as well for division of the remainder of the estate. With joint ownership there might not be much value in the "estate", and they could always give up their right so there wouldn't have to be a distribution, but with a will everything could be given to the surviving spouse, or specific gifts to the daughters as desired.

With no exes or minor children or complex property you could probably do something yourself, but it might be easier just to get it done professionally, especially if you want to do any sort of "living will" power of attorney for health care decisions as well.


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## birdman (Feb 12, 2013)

My wife and I have a similar situation and got our wills done by a lawyer for $500. and included Powers of Attorney and also documents regarding no heroic medicine at end of life, a copy of which we gave to our family dr. Worthwhile getting it done by a lawyer due to the foregoing. Also, another issue to be considered is "who would be the beneficiaries if one or both of your children pre decease you"? Would it be their spouses or your grandchildren? Most lawyers recommend following family lines which would mean the assets would go to the grandchildren and bypass your childrens spouses. We found this to be a tough call as leaving perhaps a significant amount to children, even if it is held in trust til say 25 yrs old, could be disastrous if (heaven help us) the grandchildren went down the wrong path (drugs, abusive relationships, divorce, etc). Similarly, if the surviving partner (your daughters husbands) remarried and that individual was irresponsible, the assets could be lost. In our case we elected to have the funds go to the spouses who we have the utmost respect for and know that they would not make bad decisions and whatever they did, included re marrying, the children would always come first. Also, we could revisit this should one of our children pre decease us. Mind you, once you are dead you can't control things from your grave.


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## Just a Guy (Mar 27, 2012)

Hike dying intestate, no will, will, in most cases, have the same general effect that you desire, it can possibly make it more difficult and thus take up more time for those left behind if you don't have a will. 

Some places that deal with things of larger value (bank, insurance companies, etc.) want to make sure everything is legitimate before releasing the assets they control (for obvious reasons). Without a will, even if the law is clear, they often hold onto stufff longer just to ensure nothing "comes out of the woodwork" as it were. 

Without a will, the beneficiaries may have to apply to the court to have legal proof that everything is fine to be devided. 

While it's not a lot of work, and may not even be required, (and most people have no clue as to the procedures they need to go through) it's a lot of added stress to your survivors in an already difficult time.

You may think that getting a will is a bit of a pain for you while you're alive, but not having a will is a lot more difficult, at the wrong time, for those you leave behind.


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## jargey3000 (Jan 25, 2011)

You'll probably want to indicate what province you are in. 
NL


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## AltaRed (Jun 8, 2009)

I am speechless that anyone, once they have children, wouldn't have a will. Imagine the situation had Jargey and his wife had gotten killed in a car accident when the kids were 6 or 7, or the whole family perished at the same time. It can still happen. As Frase also suggested, it is just as likely one becomes mentally incapaciated and a Powr of Attorney is required to make decisions. How does a spouse get her vegetable spouse's signature on a document to sell a jointly owned car or a jointly owned house? Go to court to have the spouse declared incapacitated? What about end of life decisions? That is what a Health Directive is about.

Someone with a 7 figure net worth is going to quibble on even a $1000 cost to put Wills, POA's and Health Directives in place? That is less than a one month income stream from investments, or a day movement in the markets for most people.


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## carverman (Nov 8, 2010)

AltaRed said:


> I am speechless that anyone, once they have children, wouldn't have a will. Imagine the situation had Jargey and his wife had gotten killed in a car accident when the kids were 6 or 7, or the whole family perished at the same time. It can still happen. As Frase also suggested, it is just as likely one becomes mentally incapaciated and a Powr of Attorney is required to make decisions. How does a spouse get her vegetable spouse's signature on a document to sell a jointly owned car or a jointly owned house? Go to court to have the spouse declared incapacitated? What about end of life decisions? That is what a Health Directive is about.
> 
> *Someone with a 7 figure net worth is going to quibble on even a $1000 cost to put Wills, POA's and Health Directives in place?* That is less than a one month income stream from investments, or a day movement in the markets for most people.


Very good information AltaRed.
I for one living alone with no spouse, decided to redo my will to include some recent changes.

My will has POA for both financial and my personal care should I have a stroke someday (or dementia) and can no longer make decisions for myself.
Not only that but my estate has to go through probate here in Ontario, and there will be probate taxes (now called "estate adminstration tax" in Ontario), if there is no spouse to assume ownership. 

My children live too far away, so it is better in my case just to sell the property, divide up any cash holdings
in the banks at the time, and have my executor distribute the balance of the estate to my children. when the time comes. 

While it is not absolutely necessary to go to a lawyer to get wills drawn up if one has a spouse, where the spouse (and assumed executor) will have right of survivorship for property and assets, it is still desirable to have a will drawn up, where the testator can specify if any cash gifts or personal items should go to family members at the time of the testators death.

You can't always depend on a spouse to make those decisions after your death, as they will have lots of other decisions to make besides funeral arrangements.

The main issue is where to keep the original will, the document signed in ink and witnessed by two witnesses. Pretty much most lawyers will keep original wills in their office safes. One might need a safety deposit box or a fire proof safe to keep the will in if it's a will kit.


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## AltaRed (Jun 8, 2009)

carverman said:


> You can't always depend on a spouse to make those decisions after your death, as they will have lots of other decisions to make besides funeral arrangements.


Especially if said spouse is also incapacitated or was killed at the same time as you were. Think about how many cpls die together in vehicle crashes et al. My will also includes provisions should myself and all my beneficiaries are killed at the same time (higher probability than one thinks).


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