Most people know they should have a will, but often don’t know what the best way is to get it done. We will take the time to tailor the will to your personal circumstances, walk you through the process, make sure your will is completed and signed properly, and hold your wills for you.
A Will is a document that expresses your directives regarding how you would like your existing assets at the time of your death to be distributed. The legal system takes very seriously the need for authenticity and accuracy when ensuring that you, the testator, are having your assets distributed in accordance with your wishes. Two witnesses are required to sign your will. Neither witness can have an interest in your assets, and at least one of the witnesses must appear before a commissioner of oaths to have an affidavit signed. Otherwise, your will cannot be probated.
Our staff can serve as witnesses to the will, and as lawyers, we can commission the affidavit. This ensures that your will can be probated years or decades down the line.
Often spouses have their wills drafted at the same time with largely similar provisions. This is because joint ownership laws make it so that most of your assets will be distributed in accordance with the will of the surviving spouse. We refer to drafting Wills for couples under these circumstances as Mirror Wills. However, it should be noted that the creation of mirror wills does not in any way shape or form prevent either spouse from changing their will at any point in the future either before or after the spouse dies. The only way for a person to have any assurance that the assets held jointly will be allocated as consented to by both parties in their jointly created wills is to create a contract between the clients which restricts their rights to change their wills. This is often known as mutual wills, or is sometimes referred to as a will agreement.
There are some tax-savings implications for holding assets jointly. Sometimes parents will add one or more children to the title to their property, or to their bank accounts, or will otherwise name a child as the beneficiary to a registered plan (like an RRSP, TFSA, etc.). While it is true that doing so can save on taxes, it can also cause problems for the distribution of assets between children. If a child is a beneficiary of an asset or a joint owner, then, upon your death, the child will automatically inherit the full value of the asset. The result of naming children as joint owners or beneficiaries, therefore, is that it can cause one child to receive more than another child. A will needs to be crafted carefully to avoid this result.
If you are responsible for minor children or other legally incapable persons, then you may need to consider whether to appoint a guardian for such persons. Appointing a guardian can be a complicated process, but is simplified, at least in part, by having a will, so long as the will appoints an appropriate guardian for the minors. A will can also address whether to separate guardianship of the minor from ownership of the minor’s assets, which can be an important provision for protecting the minor’s inheritance.
In addition to drafting your Last Will and Testament, it is a good practice to address the situation where you become incapacitated due to illness or injury. In such an event, you may need to designate a person, known as an attorney, to manage your affairs. You can do this by drafting a Power of Attorney for Personal Care and a Continuing Power of Attorney for Property. In doing so, you will need to select the appropriate attorneys and alternate attorneys to assume responsibility on your behalf.