I. Drafting a Will
To draft a Will, a lawyer must know something about your family, your assets, and what you want your Will to achieve. If your family situation, assets or wishes are not simple, more time and expertise are required to draft it. Examples of such things are:
- beneficiaries with special needs, eg. children or persons with disabilities;
- an estate plan involving trusts;
- a family situation which complicates the will, such as a separation agreement, support obligations or a second marriage and family;
- guardianship; and
- assets requiring special thought like cottages, art collections or a business.
Estate planning advice may help you to save money in probate fees, legal fees, executors' fees and taxes. This advice can be very valuable but it also takes extra time and thought.
II. Questions to Address Before Drafting a Will
- Who will manage your estate as the Trustee/Executor? If that person(s) cannot act, who will be your alternate(s)?
- How do you wish to dispose of personal belongings? Do you wish to draft a memorandum to attach to your will directing certain objects to specific individuals? Can you simply leave an informal memo?
- Will you leave a specific amount of money to any person or organization?
- Who will inherit the balance of your estate (called the "residue")? Who will be the alternate beneficiaries if those named fail to survive you?
- Are any of your beneficiaries mentally disabled?
- At what age should children be entitled to a share of your estate?
- Who will care for your children if both parents are dead?
- Do you wish to benefit persons born outside marriage (eg. step-children or foster children)?
- How should your business interests be disposed of and who should handle it?
III. After Your Will is Signed
The following steps should be taken right away:
- Let your executor and family members know where the original Will is.
- Make and keep current a list of your assets and where they can be found.
- List and keep current the names and addresses of your beneficiaries.
- Keep your documents in one place, including the title to your home, personal agreements (such as divorce papers, separation agreements, marriage contracts, family trusts), and make sure that someone else knows where these documents can be found.
Your Will and other planning should be reviewed on a regular basis. Your family circumstances may change, the laws may change or your mind may change about your beneficiaries.
If you want to change your Will, do not make any changes on the original Will. You can amend your Will by making a new Will. You can also amend it by a document called a Codicil. This document may be a formal document with two witnesses, or it may be wholly in your own handwriting (but make sure you understand the legal consequences of the changes you are making).
The law sometimes revokes your Will or parts of it when there are changes in your circumstances:
- If you marry after the date of the Will, the Will is void at the option of your new spouse.
- If you divorce, the gifts to your former spouse are void, and the Will is read as though your former spouse predeceased you, unless your Will expresses a different intention.
- Making a new will revokes the previous Will.
- Destroying your Will revokes it.
IV. Consequences of Not Having a Will
There may be both financial and practical consequences of dying without a will (called dying “intestate”). The law does provide a system of distributing assets to your relatives but the results may be quite different from what you would have intended. Preparing a will allows you to arrange your affairs to suit your own wishes and the needs of your family. It also allows your estate to be settled much more quickly and avoid potential hardship to your beneficiaries without financial resources.
Settlement of your estate should you die intestate can have much higher legal and Estate Administration costs. Someone may have to apply to court to be appointed as personal representative (like an “executor”). Finding assets and heirs may involve costly and lengthy searches, including advertising in newspapers and other periodicals. When inquiries fail to locate missing heirs, a court may become involved. Personal representatives who are appointed by the court may not deal with disposal of your assets in the most advantageous way and they are likely to charge the maximum allowable fee for their work.