Some of the benefits of making a Will include the ability to direct where your assets will go, the cost and time savings of dispensing with an administration bond, and the speed in distributing assets to the beneficiaries, paying debts, and fully administering the estate. Each in itself is a valid reason for having a Will prepared at this time.
A Power of Attorney may save substantial time and money in the event of incapacity or an extended time away from home. A Power of Attorney is a simple document that allows someone else to administer some or all of your affairs during your lifetime. It can become effective only in the event of incapacity if you wish, can be limited to only dealing with certain assets, and can provide alternate attorneys. A bank power of attorney only deals with assets at that institution. Most people should take this simple precaution in the very complex and hurried environment we live in. Failure to have a Power of Attorney could result in a costly court application to administer such a person’s affairs. You can protect yourself by requiring that two people act together as your attorney. You do not want the Public Trustee involved in your affairs.
If you decide to prepare a Will, the chances are it will be relatively uncomplicated. In order to instruct a lawyer to prepare a simple Will, you must be able to answer the following questions:
1. Who will be the executor, and in the event of that person’s death, incapacity, or unwillingness to act, who will be the alternate executor?
In other words, who do you want to distribute your assets in accordance with the wishes set out in your Will? It should be somebody you trust. That person should know enough about you to know what assets you have and what debts you may owe. Typically, your spouse would be the first choice as executor. A second choice might be a responsible child over the age of eighteen. Other family members might be considered as well. Unless your estate is complicated, you will not require the services of a trust company to act as a corporate executor. Keep in mind that your executor can administer your estate faster if he or she is located close at hand. An executor in Vancouver will not be able to administer the estate as quickly as an executor in Ontario if your assets are located solely in Ontario. Also remember that if an executor is located out of the country, it will be necessary for that person to post an insurance bond with the court, incurring further expense for the estate.
2. Are there any special bequests (gifts) that you want to make?
These might be family heirlooms to be passed down from one generation to another, or specific donations to charities. Generally, you should avoid too many such gifts, especially furnishings. People tend to have changes of heart about one person or another from time to time, thereby necessitating Will changes, with a cost being incurred for each change.
3. What is your choice for the residue of your estate, and who is the alternate if such person predeceases you?
The first choice would likely be your spouse. If your spouse had passed away, you might want to indicate that the estate is to be divided equally between your children. It is not necessary to name the children, but only to indicate that whatever children there are will share equally or in some other fashion.
4. If young children are potential beneficiaries, do you want the money held in trust until they reach a certain age? And what if they die before you or before reaching that age?
Most people do not want young children receiving substantial sums of money until they are old enough to handle it responsibly. The most common ages used in Wills are eighteen and twenty-one.
5. Tie up loose ends.
It is essential to make sure that you do not create trusts and then have nowhere for the money to go if the beneficiary of that trust should die. Consider the situations that might occur. What happens if you do not have children or grandchildren alive at your death? What happens if one child dies leaving children and a spouse, or a spouse and no children, or no spouse and no children? In the final paragraph of the Will dealing with the assets of your estate, you should indicate how you wish to deal with these situations.
Marriage or remarriage, unless after January 1, 2022, in most instances revokes a previous Will. If there is no Will, all assets are frozen until an administrator is appointed. Charities or a favourite friend would not receive anything without a Will. A Will can ensure your assets are distributed according to your desires and make things easier for your family.
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