I’m sure we have all heard the saying “There are two guarantees in life, death, and taxes.” As unpleasant and depressing as it may be, we are all going to die eventually. When we pass, we generally leave both people and possessions behind. We must help those people with what to do with our possessions. That is where the estate planning process comes in.
This week we are going to look at why estate planning and wills are important. We will also provide you with a brief checklist of things to bring to the lawyer and questions to have answered before that meeting.
If after reading this article you want more information we recommend reading Willing Wisdom: 7 Questions to Ask Before You Die.
Before we get into the checklist lets look at…
Why Estate Planning is Important
Going to see a lawyer to get your Wills and Powers of Attorney drafted up can be expensive, but have you ever tried dying without a Will or estate plan? It gets exponentially more expensive and leaves a massive burden on your loved ones.
Planning out your estate organizes all your assets and determines how and when they are to be transferred to the designated benefactors while you are still alive.
Doing proper estate planning ensures your wishes are honored and parties involved are treated fairly at your direction. The alternative is to have the courts decide what is fair and who gets what, without your input and at great expense.
Estate Planning Issues to Consider
Just like any other meeting, you want to be prepared before it starts. That being said, here are some things to know/think about before you go into your meeting with the lawyer.
Executor or Executrix of your Estate:
The role of the executor is that of a business manager. They ensure the assets are transferred to the beneficiaries, attend to income tax, pay outstanding debts, and file paperwork.
Your executor should be a competent adult that you trust and should reside close to you, and at the very least, in the same country. You can appoint as many executors as you’d like, although one is usually the best. However, an alternative executor should be named in case the first is unavailable. It is paramount that you ask the permission of the executor to assign them to this role before the Will is signed.
Your Will usually includes clauses giving extra authority to your Executors, such as suggesting they can make investment decisions, sell real property, take advantage of income tax or investment rollovers, and operate a corporation or business, etc.
Specific Bequests:
A bequest is a formal designation to leave something to a beneficiary through a will. Although there is no obligation to make bequests, they can be incorporated in your Will.
A bequest could designate a specific lump sum of cash or a specific asset to an individual or charity. If there is a large number of items, they can be dealt with by leaving a list in addition to the Will.
Common Disaster Clause:
Typically, people leave their entire estate to their spouse, or to their children if their spouse predeceases them. However, it is possible that you, your spouse, and your children may all pass at the same time. It is important that you make provisions as to who would receive your estate in that case.
Age of Majority Clause:
Children who are minors cannot take an inheritance and it is held in trust until they reach the age of majority (generally 18). The age can be increased if you choose. Until the children reach the stipulated age, the executor holds their money in trust pursuant to the provisions of the will.
Guardians:
Act in the place of parents for children under the age of 18. Whoever you appoint as a guardian in your Will is not legally binding. However, it will be very persuasive for the court if reviewing any other guardianship applicants.
Furthermore, arrangements and instructions for pets can be left in your Will. In case a number of family members would want to take over care of the pet, or no family member is interested.
Trustee Fees:
Sometime in the administration of an Estate, compensation for the executor becomes controversial. One way to avoid that is to specify what, compensation there should be for your trustee.
Burial/Cremation Instructions:
Instructions for burial or cremation should also be added to a Will. It is also wise to advise your family and friends as to what your wishes are, as sometimes the Will is not reviewed until after the funeral.
Things to Bring to Estate Planning Meetings
In addition to knowing the answer to any question about the above-mentioned topics, there are some things you should provide your lawyer.
- Copy of your current Will, if you have one.
- A general list of all assets and liabilities.
- Details regarding marital status. They will need to know if you are divorced, separated, widowed, have a common-law spouse, how many times you have been married, or if there has been a common-law spouse in the last 3 years.
- Details about all dependents you have, whether they be natural, adopted, or stepchildren.
- Information regarding and restrictions on leaving assets in a Will. This would include things like being bound by a separation, cohabitation, or pre-nuptial agreement, jointly owned property, and assets outside the province.
Note: if you are separated from your spouse, either formally or informally, it is strongly recommended that you update your will.
Additional Estate Planning Information
In addition to all the things that have been mentioned above, below are a few more points you should be aware of as you enter the estate planning process.
- Once you have signed the Will, you should make sure the executor is aware. You should also inform them where a physical copy of the will can be found. The executor doesn’t need a copy or have to sign the Will but eventually will need to have access to it when you pass.
- It is also important to remember that your spouse is entitled to half of your estate. If they are not adequately provided for in the Will, they can dispute it in court.
- Upon marriage any pre-existing Will becomes void. When you divorce, any Will you have is interpreted as if your spouse had predeceased you.
- If you are in a common-law relationship or separating from one, it is important to consult a lawyer about the implications. Common law relationships create a lot of legal obligations, most of which are not desirable.
- Upon the creation of any new Will, all copies of old Wills should be destroyed.
- Your Will only takes effect upon death. If you’re alive but physically or mentally unable to look after your affairs, you need a Power of Attorney.
- Once your Will and POA are prepared, they should be reviewed on a regular basis. It should be reviewed every 5-10 years, or as circumstances dictate (i.e., marriage, children, financial situation, etc.).
- If you want to change something in your Will it can be done through a codicil. DO NOT make any changes to the original document.
Conclusion
Estate planning can be quite the process. However, if you are prepared going into the meeting with a lawyer the process is greatly simplified. Furthermore, the earlier on in life you begin the estate planning process the easier and less stressful it is later. It doesn’t matter what age you are, you should at least have a basic Will and Power of Attorney, even if you need to update it in the future.
Unfortunately, most estate planning only happens when people are thinking about retiring or have already retired. That being said, here are some Tips For Pre-Retiree’s, and Tips for those already retired.
Finally, it is important to speak with your financial advisor and accountant about your estate plan before you prepare a Will. They can work in conjunction with your lawyer to ensure that your affairs are in order.
For more great estate planning information we suggest reading Willing Wisdom: 7 Questions to Ask Before You Die.
Note: basics concepts and info was taken from “Guidline of What is Needed in Order to Prepare Your Will” produced by Patersons Law Office in Brandon MB.
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Disclaimer: This Forbes Wealth Blog is for informational purposes only and does not constitute financial, legal, or tax advice of any kind. Please consult your legal, accounting, tax, investment, banking, and life insurance professionals to get precise advice relating to your particular situation before acting upon any strategy
