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Present: Lynn, Chris (ASL) .. Gabe, Hal, Robin, ?? ??? Chris Aucoin, Don Murchy, Jim, Nick, ??< Bill M Anita, Debbie, Tuma, Bob, Dan, Heather,
Presentation: Tuma Young on Wills
Notes taken by Daniel MacKay. Any errors are mine.
Many people think they will die after they get the will done, and hold off on it, so try to consider it as "Planning to live" and plan to update the will after five years
There's a saying in the laywer community that Do-It-Yourself wills generate more work for lawyers than they eliminate -- because of errors and omissions.
Who should be your executor / executrix? For a simple will, get a friend to do it.
All your property and estate goes to your executor, in trust. S/he collects all your assets and keeps them in good order, and collects all your bills -- and to make sure that those are valid bills.
Then, it's the job of the executor to fulfill the intent of the will.
In the will, focus on the general parameters, e.g. "House and contents' go to a particular person.
Q: If the will indicates that all the worldly possessions go to my sister, does the house, which still has a mortgage, get liquidated, then the proceeds go to he sister? A: If there's a mortgage, the bank has first claim on it. In a will, you should first write the exceptions of what's going to whom, then "the rest and remainder" goes to one person.
Review your will and estate plan whenever something significant happens, e.g. you buy a new house, get partnered up or married, move in, common law, break up, throw the bum out.
Q: how can we make codicils that are legally significant? A: mark the paper "Codicil," sign it, and attach it to the back of the will. For minor things this is OK, but for major changes you should probably do a new will.
To have a lawyer do a whole will expect to pay $500 - $1500.
Tumas' law firm is offering a special deal, $700 for this group.
Q: What if you made your own changes to the will and took the document to a legal firm? A: they'll charge you the same amount. If the changes are minor, again, a codicil can be used.
Q: Would you do a codicil for a change of executor? A: No, not just for that.
About executors: an executor can charge a percentage of the estate; you can add a clause to give the executor a set amount in lieu of any fees -- or a gift. You can also appoint an alternate executor, or any number of them, or co-executors.
It is often much more efficient to set up a trust for your heirs before you die, to avoid probate fees or, in the US, inheritance taxes. The trust can own everything of yours, even before you die.
If you have RRSPs, talk to a tax lawyer to make sure they don't become part of the value of the estate. They can be transferred to a partner or spouse, but not to a child. If it goes into the general estate, e.g. $200,000 will be considered income for that year, and a substantial amount of that will go to tax.
Q: what are the pitfalls of the executor also being the principal heir? A: the executor's job is to follow your wishes. Often they do not have the same interests as the natural heir.
Priority list of natural heirs: if you have children, they must be considered. if you have spouse, they must be considered, then siblings, then living parents.
Q: What does it mean to be "considered" ? A: They have to be mentioned in the will, and specifically given nothing. "These are my children: (list) and I have considered them. I have provided for them all my life and I do not feel they need any more." Do include illegitimate children. The purpose here is to avoid any contesting of the will.
Q: Will Probate Court take a % of my fees? A: there are ways to avoid this, by working with a tax lawyer.
Q: if all accounts are in my partner's name, can I avoid those probate and disbursement fees? A: Probably not.
Comment: it is not an honor to be executor. It is a pain in the ass, a lot of work. It's a shit job.
Q: if there is a second executor, should they know that they are named? A: yes, all executors should be notified and should have a sealed copy of your will.
If there is no will, someone will be appointed "administrator"
There is a lower limit on the value of the estate which would avoid probate -- but almost any possession, e.g. a car, will push you above this limit.
Q: are there copies of wills in official places? A: After Probate, your will will be filed in Probate Court, and as such is a public document.
Q: What happens when you die? A: Your executor(s) should be people who will know when you have died, and can begin by opening your will.
Q: Are handwritten wills valid? A: "Holograph wills" are valid if they fulfill all of the requirements of a will and are in the right format, and is executed with two witness. Except on reserves, where more informal wills were accepted - for now.
Q: Which province has jurisdiction if you lived in different provinces? Is it where you lived, or where you died? A: It's where you want to be listed. If you move, the province of last legal residence is where the laws are applied. Remember that you must be in Canada for six months plus a day to maintain your official residence.
Q: Is it a complicated thing to set up a trust? A: It depends; those are charged on an hourly rate.
A document which appoints someone to given the power to do whatever you would normally do; it can be as limited or as broad as you choose. The power kicks in when you are unable to manage your own affairs. e.g. in a car accident, and you're in a coma. When you're no longer incapacitated, the power of attorney stops. E.g. if there are two separate bank accounts, if you're incapacitated, your spouse will not be able to access your bank account. Sometimes joint accounts will work for this - but not everyone is comfortable with that.
Q: Does Enduring Power of Attorney give me the power to "pull the plug?" e.g. make decisions of medical and personal care? A: No -- well, it *can* but that is the Personal / Healthcare Delegate (formerly known as "living will") document.
You appoint someone to be your Personal Delegate- that is the first part. It gives your delegate the ability to instruct your doctor when you can't. Then you attach an appendix which specifies your wishes, e.g. to be given antibiotics or not, to be intubated or not, to be given painkillers even when you know that may hasten your death. However, the decisions ultimately are made by the doctor.
One copy goes to your doctor, and one to your delegate.
It's not just the right to "pull the plug" - it's about communicating your wishes -- for example, to indeed use heroics to keep me alive -- when you're unable to do so.
If someone's in the hospital for 48 hours or more, you *should* have already been approached to get these directives recorded.
Q: What will happen if this isn't in place? A: it'll default to the next of kin: first children if they're of age, then parents, then brothers and sisters, then aunts and uncles.
Q: if someone died without a will, and there is a partner - domestic partnership, common law, married. A: Marriage voids a previous will. Domestic partnership may not necessarily void a previous will. Domestic Partnership dissolves after not being together for one year. For Common Law, in a case a couple of years ago, it was decided that the couple made a choice to *not* be registered as domestic partners or get a Cohabitation Agreement, which is like a prenuptial agreement.
In short, if you're living common law, you should get a cohabitation agreement or register as a domestic partner. Otherwise you run the risk of unequal distribution of assets, or no support.
A great wedding gift: a gift certificate for a new will.
Q: What are the differences between domestic partnership and marriage? A: for wills, nothing. In other situations, the word "husband" has more force than the word "partner."