10 Things Estate Lawyers Want You to Know About Making a Will

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    Estate planning is the process of outlining a plan in advance for the future. This usually involves planning how you’d like your assets (or your “estate”) to be distributed after you pass away, documenting what should happen if you have a medical emergency, and who should care for any minor children or pets.

    Estate plans can include several components, including a will, power of attorney documents, trusts, charitable gifts, and more. 

    These documents will help you look after your family and loved ones after you pass away, protecting and guiding them once you’re no longer around. 

    In this article, we’ll outline the important documents in an estate plan, as well as highlight 10 tips from Canadian estate planning lawyers to help you create your will and estate planning documents.

    1. Plan like today might be your last

    Shawn Patenaude, an estate lawyer based in Saskatchewan, says estate planning is all about hoping for the best and planning for the worst. 

    Creating your estate plan helps make sure that when the time comes, your loved ones will have access to your wishes.

    Making your last will and testament

    Your last will and testament, often referred to simply as your will, is a legal document where you can outline your wishes about:

    • How to distribute your assets such as property, money, and digital accounts
    • Who should be your executor and manage your estate
    • Who should be the guardian of your minor children after you die
    • What kind of legacy gifts you’d like to leave behind
    • What your funeral and burial wishes are

    Creating power of attorney documents

    Depending on what province you’re in, you may have powers of attorney for personal care and powers of attorney for property, or these documents may exist with different names, like advance directives, healthcare directives, or personal directives. But what exactly are they? 

    A power of attorney for personal care (or equivalent) is a document that states your personal care and medical preferences and appoints an attorney to make decisions for you if you ever become incapacitated. They can be essential for covering decisions about life-saving treatments and advanced care.

    A power of attorney for property (or equivalent) gives your appointed attorney decision-making authority over your property, which can include your financial accounts, real estate, and more. 

    2. Never underestimate the importance of both a will and power of attorney

    Ashley-Rose Gillespie, HBA, JD, GPLLM, who practices in Ontario, says that getting a will and power of attorney documents now makes all the difference, saving you time, effort, and stress if you should ever need them. 

    The difference between between wills and POA, and why each is important

    An easy way to remember the difference between a will and a power of attorney document is that POAs protect you in life and wills protect your family after death.. 

    Your will is about your estate and end-of-life wishes, and your estate only forms after you pass. 

    Your POAs, on the other hand, are about giving someone the ability to make decisions about your healthcare and property while you’re still alive.

    The easiest way to create a legal POA and will in Canada. Start yours for free →

    3. An executor makes all the difference

    Don’t forget to choose an executor. “An executor for the estate must be set to manage the distribution of assets after the will-maker's death,” urges Sundeep Singh Gill of the Patrola Law Corporation in BC. 

    Without an appointed executor, the government must step in to appoint someone to manage and distribute the estate, which can lengthen the estate settlement process as well as potentially cause more friction and stress among beneficiaries and loved ones.

    Choosing an executor yourself ensures you have someone you trust to take on this important role, someone who can distribute your estate as you would have wanted. 

    Tips on how to choose your executor →

    4. Choose the right person as your executor

    In addition to making sure to appoint an executor, it’s equally important to choose someone who’s well-suited for the role. Multiple estate planning lawyers stressed the importance of choosing an executor and backup executor who has the ability to carry out their duties. 

    Executors are responsible for more than just distributing your estate. They also take care of funeral and burial wishes, address debts and liabilities, communicate with beneficiaries, and more. 

    “[They should] have the wherewithal to carry out duties,” says Shawn Patenaude, but he also cautions that “in making [your] decision, consider the impact your [passing] may have on his/her mindset.”

    Kevin Kelly, an estate planning lawyer in Alberta, also adds that “it is important to choose an executor you trust and who is digitally savvy and capable of handling your digital assets after you pass away.” Canadians are becoming increasingly more digital and acquiring more and more digital assets, including social media accounts, loyalty programs, and cryptocurrency. 

    5. Don’t forget about executor fees

    In Canada, executors are allowed to take a fee for their work, and this fee comes out of the estate. 

    “Fees cover their cares, pains, time and effort spent settling the estate,” explains Joel K. Samphir, an estate lawyer based out of Manitoba. “It’s a good idea to discuss the fee with your executor and insert a clause in [your] will setting out the executor’s fee. This may prevent beneficiaries from questioning the fee after your death and thus prevent the need for passing of accounts.”

    6. If possible, discuss before you document

    While your estate plan outlines your wishes, and yours alone, it’s important to speak with your loved ones and heirs about your wishes. 

    “Discuss with your heirs what you intend to include in your will before finalizing it,” encourages Avi Moryoussef, who is an estate lawyer in Quebec. “This proactive step can prevent surprises and potential conflicts after your passing, giving you the chance to resolve any issues while you are still alive.”

    Our wishes can also change as time passes. Keeping your will and loved ones up-to-date about your latest wishes and decisions helps make sure there is no confusion or conflict in the future. 

    With Willful, you get unlimited updates for free, forever →

    7. Make it easier to find your executors, beneficiaries, and guardians

    When appointing your executor, beneficiaries, guardians, attorneys and other key roles in your estate planning documents, make sure to clearly provide their names so they are easier to find.

    “Oftentimes, administration can become unnecessarily complicated when testators have documents without sufficient detail,” Madeleine E. Coats, an estate lawyer from Nova Scotia, explains. “‘My friend, Bob’ would be much harder to track down at administration time than ‘my friend, Robert Lee Smith, of Halifax, Nova Scotia’.”

    8. Have backups, and backups to backups

    For key roles in your will and power of attorney documents, it’s important to have backups so your documents can be as agile as you are. “Including backups ensures a will can last through life changes and not leave gaps when it needs to be used,” says Scott B. Allison, estate planning lawyer from Ramirez Allison LLP, which is based in Ontario.

    Willful makes it easy to add backups for your executor, beneficiaries, and guardians, and you can also update these names at any time for free. 

    9. Keep your original will in a safe place

    Madeleine Coats also gave us another tip about the importance of keeping track of the original will: “If probate is required, the original will and an original affidavit of execution will be required by the Probate Court.”

    If a will was created but the original copy cannot be found, additional applications will need to be filed to your provincial court before a Grant of Probate can be issued, which can add significant delays and expenses to the estate administration process.

    10. Make sure your documents meet legal requirements

    If you create a will and pass away, but your will does not meet the legal requirements of your province, your document will be dismissed and the government will consider you to have died intestate (without a will). 

    There are many requirements to create a legally-valid will, including how it’s created, how it’s signed, and who can witness it. This means that while you can write your own will with just pen and paper (called a holographic will in Canada), there’s more benefit in using an online will platform like Willful or visiting an estate lawyer. 

    The Willful Advantage

    Willful is an online will platform that makes it easy and affordable to create your customized legal will from home in about 20 minutes. Willful documents have been approved by lawyers in each Canadian province.

    With a series of questions to assess your life situation and preferences, Willful helps you make a will and other customized documents tailored just for you. 

    Some of the highlights of using Willful:

    • No lawyer or notary required
    • Free unlimited updates
    • Expert support from real people
    • Trusted by 150,000+ Canadians

    When to Seek Legal Assistance

    While Willful is a great choice for the majority of Canadians and can help you save thousands in legal fees, there are some situations where Willful isn’t a fit, especially for those with complex estates

    You may want to consult a lawyer about your estate plan if:

    • You’re looking for legal advice about your specific situation
    • You’re separated but not divorced
    • You want to create a Henson trust
    • You want to create a trust other than a simple testamentary trust
    • You want to create dual wills
    • You want to exclude or disinherit a child, spouse, or family member
    • You want to add custom clauses or complex wishes
    • You want to choose an executor living in another province or country
    • You want to appoint a co-executor or co-attorney

    Prepare your estate plan today

    With an estate plan, you document your wishes, take your future into your own hands, and give yourself and your loved ones peace of mind.

    Both wills and power of attorney documents are essential for your estate plan, but they don’t have to be complicated or expensive to make. With Willful, you can make your documents without hassle, in your own time, and within your budget. 

    Peace of mind is just a click away. Start yours for free →

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