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Thread: Making a Will

  1. #1
    Senior Canuck chillys-willy's Avatar
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    I am being responsible and want to make a will. I had a holographic will when I was younger but many say that is not enough now that I have a DH, 2 kids, etc.

    I was looking at dealticker today and they are selling an online will kit. I am not sure whether to go to a lawyer and spend the extra money or just use a will kit. I do not have a complicated situation but want to be properly covered.

    Here is the dealticker link: http://www.dealticker.com/_18_for_an..._7304prod.html

    Any comments and suggestions would be appreciated.

    Thx.
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  2. #2
    CaLoonie
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    Go to a lawyer. It's not like you re-do your will every 6 months. Your will should last until there is a major life change..... the kids are all past age of majority..... your executor dies.... etc. So spend the money and get one done properly.

    two tips.... pick your guardians for your children very carefully and make sure your executor is someone who lives relatively close to you. By that I mean... do not pick your brother who lives in another province. It is too difficult and expensive for him to have to administer your estate if he has to keep flying back to settle things.

  3. #3
    Crazy Coupon Lady corbinx's Avatar
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    I agree...go to a lawyer! It will cost more in the long run if someone has to try to sort out some do-it-yourself kit that forgot info. I think we spent about $800 on ours. This way you know everything is accurate and legal. Make sure you talk to everyone ahead of time to make sure they are okay with being executors, guardians, following your medical wishes, etc. as nobody wants to be surprised with having to do something they might not feel comfortable with.

  4. #4
    Frosh Canuck
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    Powers of Attorney kits are available FREE OF CHARGE from the Office of the Public Guardian and Trustee,,,however when you have children it is best to get proper legal advice in preparing a will.
    A will becomes a public document during the probate process and ANYONE can contest a will for the cost of a stamp. BE CAREFULL

  5. #5
    Smart Canuck miztia's Avatar
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    Lawyer all the way! I wouldnt have said that 2 years ago, but they have good advice. They can offer suggestions to lessen taxes, keep assests out of probate ect. If you want to make things easiest for the beneficiaries, a lawyer is the way to go.
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    Smart Canuck ahatt's Avatar
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    My DH and I used an online will kit to do make our will, but we don't have children and our estate isn't very complicated. Since you have children, your estate becomes much more complicated so it would probably be best to see a lawyer for your will.
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  7. #7
    CaNewbie
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    There is nothing wrong with a holograph will for someone with no children and a simple estate. However having children means you need a lawyer. Shop around and get a deal as most lawyers use the same precedent. The most important decision is at what age do the children become entitled to receive their share. If it is a decent amount, you don't want them wasting it at a young age, but then again they may need funds to go to university etc. A lawyer can help you set up a situation where the funds are held in trust until they reach 18 (or 21 if you're cautious), but with power in the executor to pay for necessities, school etc.

    As to naming a guardian, your choice is not legally binding but assuming you pick a responsible adult that you trust, (often a brother or sister etc.) this will influence any court decision as to the child or children's best interest. Of course talk it over with the person ahead of time and make sure they are willing. Naming an alternative will cover you if the first choice should predecease you. Otherwise you would have to change your will at more expense.

    Summary: The normal simple will (drawn by both parents jointly) names your spouse as first beneficiary and of course the children will still remain with the survivor. If both die there is an executor who should be physically close as pointed out and should be someone not intimidated by paperwork. This is usually, but need not be the same person as the guardian you name. If you both die together, the children inherit, usually in equal amounts, with the funds held in trust and used for their benefit until they are old enough to receive the balance. This is where you must trust the executor, because "for the benefit of the children" is a broad term and you don't want someone using the funds for silly or personal things. So before you go to the lawyer decide on an executor and alternative, a guardian and alternative and at what age the children inherit. You do not need to list your assets as these change and the lawyer will deal in generalities, ie "your estate". Make sure the house is in both names in joint tenancy and it will not have to be probated if one spouse dies, (saving you money in estate fees).

    No charge!

    RH
    Last edited by escher7; Thu, Sep 22nd, 2011 at 03:10 AM.

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    You may think your situation is uncomplicated because you do not have a complex situation. A WILL has to be constantly monitored for changes in your life or your children. Things that could change, not likely, but a child could become disabled. In this case, you will want to create a WILL that provides for the child in a trust. There are sever kinds of trusts the can be deployed depending on your circumstance. There is even a spousal trust for you to take advantage of favourable tax rate given to a trust when transfering investment held at their adjusted cost basis i.e. stocks.

    There are different trusts that you can use for your children. Like a discretionary trust. This is a trust that names your child a beneficiary of the trust but allows the full control to remain with whomever you decide is the trustee in your WILL. This may be used in situations where your child, in your view, cannot handle money responsibly. However , it also has several downfalls, the trustee has no compulsion to give any money to the child. This is why it may be important to choose who the trustee is.

    Some people use a financial institution trustee, while this will guarantee that you wishes are complied with as designated in your WILL, it also becomes a problem when an institution pays itself out of the capital of the trust threw administration fees.

    By seeking out a lawyer, you can also minimize probate fees, this should not be your main objective but may be a consideration when drafting your will. Probated fees are used to insure that they will direction be complied with.

    Things are in a constant state of flux in your life and there are always new opportunities that come up, such as A TFSA account. There are specific laws governing the transfer of TFSA when a death occurs. Depending on if, it is your spouse or your children. There is nothing overly complicated but should be investigated to insure the vehicle you use to save in for retirement or whatever is treated the best way for income tax minimization and probate. Generally, insurance policies RRSP and TFSA are not considered as part of the probated amount upon death.
    http://www.taxtips.ca/tfsa/holderdeath.htm


    It may be prudent to get a term life insure policy so that right now if you and your spouse were to die, that there would be sufficient funds to create a trust for your children, unless whom you decide to become your children guardian are extremely wealthy. Some parent continue a large life insurance policy for a large number of years because they do not think they will be able to put aside enough money ever to pay for their childrenís future. A life insurance policy is tax free to your beneficiary upon death.

    For example your may want to start a RESP (registered education savings plan) for your children to use for school. It may be prudent to insure this is continued in your WILL to insure your child has enough to attend further education. The reason it may be prudent is the government adds to your contributions to an RESP so you are adding to the capital by just putting some away.

    There are two-types of ď power of attorneys one is for health and the other of for financial. Both of these should be considered separately to comply with your wishes is each circumstance. For example do you want extraordinary measure to be used in the case of sickness. Who do you trust right know with your financial affairs.

    For all the thing stated in this post it is a good reason to consult a lawyer and or a tax specialist to insure that your choices are correct for the situation you are on right know and possible in the future.

  9. #9
    marnwa
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    There is a lawyer in St. Catharines, Mr. Bukhari , who does wills and POA each year around Christmas for a food bank donation, preferably a large peanut butter jar, and a small fee (around $40.00). You fill the forms out on the computer that are sent from office, email everything to him and meet with him for the signing. It is to help people afford this important legal paper. I did mine this way as did my daughter. Wonderful service and wonderful of him to offer it. It is advertised in the paper and hopefully he will offer it this year.

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    Follow-up by escher7.
    Life insurance, naming your spouse first and children second is a good idea. However, stick to term insurance as most other policies are a rip. The policy should name your spouse as first beneficiary, with the estate second. That way, if both spouse die together, the funds will go into the estate and be used for the children as set out in my previous post.
    A power of attorney is not usually prepared unless you are elderly or have an illness that may render you unable to take care of your affairs. If your assets, (bank accounts, house etc.) are held jointly, your spouse can take care of these matters if you become sick (or senile). Again, if you are both young and healthy, it's unnecessary.
    RESP's and for that matter RRSP's are always a sound saving idea.
    Then there is the matter of a so called "living will" which is not really a will at all, but rather a "health care directive". Again, most people do not worry about these unless they are sick or very old. The concern is whether to have the doctors "pull the plug", (or not) etc. if you become very ill. Health care directives are not legally binding unless there is a provincial statute recognizing them. By now that should be most provinces, although I haven't checked recently. Even if the directive is not recognized legally, it will state your wishes and normally your family would follow those wishes in any case. Mention it to the lawyer or find a simple form online for your province.
    Regarding so-called "trust" wills - these are really just normal wills that call your executor a trustee, which he is in any event.Whether an executor or a trustee, leaving money to your children for their use until a certain age creates a trust.
    Finally, regarding tax specialists, these are very expensive and if you have enough money to justify one, you probably already have a will and a lawyer. Most competent lawyers or more often accountants can advise you if you need some minor tax planning.
    Last edited by escher7; Thu, Sep 22nd, 2011 at 11:24 PM.

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    Sounds good.



  12. #12
    CaNewbie
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    A term life insurance policy can be used to set up money that you do not already have for your children. Term life is a vehicle that may be used to set wealth aside that you do not have, and a full life is a rip off especially at your age know.

    Waiting for both powers of attorney whether they are a Living WILL or financial until you become old or sick is not a very good idea, the intention of a WILL at your age is to plan for a low probabilty event and insure that everything is taken care of. If this is true can you be certain that you can wait until you are old or sick to consider a power of attorney. The point is to prepare for this low probability event.

    The executor of your estate does not have to be your trustee of the trust that you set up for your children. This is where it is a good idea to consider who will be your executor and who will be a trustee of a trust. It may be prudent to have to different people for each of this task so that there are inherent check and balances in your plans for the future.

    Most lawyers should be able to deal with minor tax situations, but insure that you are asking normal tax questions of the average person. It is not good to make a blanket statement that all things can be handled with a lawyer to someone when you do not know all the information. Therefore, asking a lawyer if you have any unusual tax situation may be prudent because this will identify an area where the lawyer is not comfortable.

    It is likely that in simple cases that you do not have any special area but it hard to know unless the whole picture is known.

  13. #13
    CaLoonie
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    Hi, was wondering if you could tell me what is meant by a "will becoming a public document during probate"?

    Is this done provincially? And if yes, where would you go to find the will in probate?

    Cheers!
    violetgypsie


    Quote Originally Posted by mrsfd View Post
    Powers of Attorney kits are available FREE OF CHARGE from the Office of the Public Guardian and Trustee,,,however when you have children it is best to get proper legal advice in preparing a will.
    A will becomes a public document during the probate process and ANYONE can contest a will for the cost of a stamp. BE CAREFULL

  14. #14
    CaNewbie
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    A will becomes a public document just by virtue of filing for probate. Once it is filed, a copy remains in the pocket (fancy name for file) and of course anyone can view court files. For all practical purposes it is still fairly private, (not published in the paper!), but any interested party can ask to see the file and thus view the contents of the will.

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    Oh, and Violetgypsie, the other part of your question - ie what court - it is provincial and varies slightly from province to province. In Manitoba probate is filed in The Court of Queen's Bench. This is the superior court in the province and has a probate branch. Just look up "courts" in the phone book or Google "filing probate in ****". Some provinces call their superior court a different name, for example in Ontario it's the Superior Court of Justice. (They also now call probate "certificate of appointment of estate trustee with a will" but it's all the same stuff.

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