Four estate planning questions

Hearing that you ought to update your will is little bit like being told to take up jogging. But here are four reasons why it’s really important.

We asked Bill Thomson from O’Sullivan Estate Lawyers the following 4 questions:

Everybody knows that updating your will is the right thing to do, but that doesn’t make it any easier to get started.

“Roughly one out of three people have a will in Canada. That means two-thirds do not. Of the one out of three that does, a very high portion has outdated wills. That’s one factoid. Another is that one out of four people dies suddenly and therefore doesn’t have time to do a will and estate planning based on his or her needs, realities and wishes. It’s really important to do this.”

What happens if you do nothing?

If you die without a will, it’s called dying intestate. The provincial Public Trustee’s Office will try to protect the financial aspect of your estate by essentially taking over responsibility for your affairs to the point of probate. Probate means that everything is properly done and taken into account in terms of paying off the creditors, etc. If there are children, the office assumes the role of guardian. Essentially, the state takes over and performs the role that would have been performed at a basic level if you had had your ducks in a row (i.e., power of attorney, will and a living will or healthcare proxy). Under the legislation of each province, where that money goes is all done by formula. If people knew that, and they were looking at the reality of their own lives, they would say that’s not at all how I want things to go.

What constitutes a will? If I were to simply write down what I want and sign it, is that sufficient?

No, it’s not. In each province, they have legislation that sets out what constitutes a valid will. There are a number of different things. It has to be in writing. It has to clearly set out who you are. It has to clearly set out who you want to give your money to. If you just say I want to give it to the cancer society, that doesn’t provide clarity. There could be a lot of different cancer societies in each province. That could create a lot of confusion. Any vagueness or ambiguity can create a problem. It has to be clear who it is you’re giving the money to and how to contact that person. It also has to be signed by the person in the presence of two other people who are not in the will. In other words, they don’t have any self-interest in that respect. It has to be dated with the location and so on. Those are the basic requirements of a will. A lawyer is not required but it would be highly imprudent if you didn’t have a lawyer. I’d say 95%, if not 99%, of do-it-yourself wills have something intrinsically defective about them. For all sorts of reasons, do-it-yourself wills tend to be worthless.
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How often should a will be updated?

You should reflect on what changes in your life occur every year at any given time: could be on your birthday. Did anything change? And then act accordingly. It could be that tax laws have changed; that could be an incentive for you to give more to charity than you otherwise were going to give in your will. Maybe people you had in your will have predeceased you or you’ve had a falling-out with someone and you don’t want to include them in your will. Maybe you have new grandchildren and you don’t want to give the money to your children. You want to have a trust set up so that the money is held until the grandchildren reach a certain age of maturity. Whenever any major event happens in your life — illness or divorce, marital separation, whatever it may be — that’s an automatic trigger to revamp your will. All of these life events should trigger somebody to say I need to speak to a lawyer who does will and estate law. I want peace of mind, to avoid family disharmony upon my demise, to pay as little as possible to Revenue Canada and to remember charities.

How do you select an executor?

A lot of people put executors in their wills without even talking to the executor. A lot of them just put them in because they think they should or because the person would expect to be the executor. There are a lot of people who are not constitutionally suited to be an executor, who end up having their names in there and they may not even know about it until the person dies. It’s a big problem, selecting the wrong person. That alone can cause disharmony in a family. Let’s say you appoint one of your children, the eldest sibling. That can fuel resentment among the other siblings. It happens all the time.

The other key thing about finding the executor is that when you do select one, it is very critical to analyze what qualities and traits that person has that you feel are so unique that you would want them in that role. Speak to them. See if they’re even interested. They might say no. Have an alternate executor in case somebody doesn’t want to fill that role or they predecease you. You can have co-executors to share the load. You could have three people or more for that matter. It’s a critically important decision who you have down as executor.

The amount of responsibility involved for the executor is very high. The liability is equally high. The executor is liable and can be sued by beneficiaries who feel that they didn’t preserve the assets quickly enough, they didn’t invest the money appropriately during the probate period and therefore money was lost. The amount of risk, liability and responsibility for an executor — which obviously varies depending on each individual situation — is very onerous. An option B for people is to have a trust company be an executor.