Frequently Asked Questions

“Ignorance is the root of misfortune.” – Plato

Plato also observed that “being aware of the sickness is half the cure.” This is also true of effective estate and personal planning which, like a medical diagnosis, requires a full consideration of relevant background information.

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Most people think of estate planning as financial planning. While financial planning is key to estate planning, equally important as your financial “health” is an understanding of your personal goals and family dynamics.

Effective planning therefore usually involves not only sound professional advice, but also financial and personal/family understanding (we refer to this entire process as “Estate Planning”).

Not everyone will benefit from our simple Will form. If it does not fit your needs please seek appropriate professional advice from a qualified professional in your jurisdiction. For all others, our Will is an excellent start.

Please take the time to read all information on this site related to Estate planning, the Frequently Asked Questions and our disclaimer and caution. You can find definitions to many legal terms surrounding the Estate Planning process in our Legal Lexicon.

O. A. Battista wisely noted – “The best inheritance a parent can give to his children is a few minutes of his time each day.” This aptly applies to taking the necessary time to do proper and effective Estate Planning, and may avoid unnecessary grief and upset. We believe this is perhaps the second best inheritance you can give your loved ones.

What Estate Planning Is!

Estate Planning involves two main considerations. 1) How you deal with your estate during your lifetime and after you die; and 2) Planning for your own care if you are not able to care for yourself.

As noted, Estate Planning includes not only having a Will but also involves medical, business, financial, tax and family dynamics planning. A good Estate Plan will address all of these and be tailored to your needs. We have simplified the process, to start you on a proper course for your own Estate Plan.


What Estate Planning is Not!

“The best laid plans of mice and men…” Even the most comprehensive Estate Plan will not guarantee that there won’t be a fight over your estate after you are gone. Nor will an Estate Plan guarantee that your estate will avoid income or succession taxes or duties. It will however consider these issues and address likely problems and minimize, if not totally eliminate, those risks.

Additionally, no Estate Plan can control what will happen in the future. Therefore your Estate Plan needs to be updated and revised on a regular basis. For example, if you and your partner are happily married/co-habitating now but become divorced/separated in 3 years. Your circumstances have been changed in ways that were not provided for in your Plan.

Estate Planning is definitely not a one-time affair! It is an evolving process that should mature as you do and must change as changes are forced upon you. Although it is the best insurance policy you can get, it offers no guarantees!

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What is my Estate?

Your Estate is everything that you own, have an interest in, or which you acquire after you execute your Will. This includes all household effects, clothes, home, condo’s, apartment leases, vehicles, contracts, equipment or car leases, mortgage equity, insurance policies, retirement benefits, intellectual property (copyrights, patents, etc.) and anything else that you have control over (collectively referred to as “assets”).

It also includes any debts, obligations, taxes owed, unfulfilled contracts and promises, and outstanding mortgage, credit card or contract debt (collectively referred to as “debts”).

The value of your Estate is determined by taking the “fair market value” of your assets and deducting the total “provable” debts. Fair market value is the price that could be obtained on the open market on the sale of any particular asset. This is also known as the present value and is usually determined at the time of your death (if assets are not sold) or at the time the asset is actually sold in good faith to an unrelated (“arm’s length”) purchaser.

Provable debts are those that are claimed by creditors and proven in Probate Court or agreed to and settled in good faith by your Executor. A debt will be released (of no force and effect) if a claim is not submitted to Probate Court, your Executor is not aware of it, proper Probate procedures are followed and the required time passes. This is one of the protections provided by probating a Will and is usually worth the associated cost.

Your Estate does not include any property in your name that you hold “in trust” for another (for example your child’s bank account) or any property that you are administering that belongs to another. For example, if you were an executor under someone else’s Will at the time you died, your Estate would not own that property but may have a claim to executor’s fees and other expenses that you have incurred.

It does not include any property that you hold as joint tenant with another, as the property goes to the surviving owner on your death. This is known as the right of survivorship.

You will need to consider what property you own or control and what your future plan is for that property. What will happen after you retire? What claim do others have in whole or part to the property by law (i.e. joint, common or community property) or by agreement (pre- or post-marriage/nuptial agreements)? What effect does the deemed disposition of the property at the time of your death have on state/provincial or federal taxes?

What pension benefits or profit sharing plans do you have? What about insurance for yourself or your business? What about buy-outs of shareholders under a shareholder’s agreement? What about mortgage pay-outs? Are they insured or do you need to use up all your cash to buy them out (and therefore are not able to leave that cash to someone else)?

Answers to all of these and possibly hundreds of other questions may be necessary if you want a comprehensive Estate Plan. You can however effect a simple but effective Estate Plan that may fulfill all of your needs, starting with a free Will made on our website.

Remember it is your plan and should reflect your goals and wishes.

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Do I need An Estate Plan?

Everyone needs an Estate Plan. Whether you have few or no assets you still should have a simple, effective plan. If your Estate is small you may only need a simple Will to state who gets your property. If you have a complicated Estate you may need more involved planning, which may include inter vivos or testamentary trusts, life interests in property, advance gifts, joint property designations, estate freezes, holding companies for partner/children, off shore asset holdings, etc. A simple Estate Plan is sufficient for most people.

Whatever your circumstances, you should consider an enduring (durable) Power of Attorney to deal with incapacity and management of your affairs; and, possible health care directions, coupled with a health care Power of Attorney (sometimes referred to as “Living Wills”).

At a minimum, you will want to decide what you would like to provide to your loved ones and either satisfy yourself that you can do so or look for ways that it can be done. This may include purchasing life insurance, weekly deductions from your pay to build up a savings fund or buy an annuity, education savings plan or set up a trust for your children’s education, etc.

You should also make a commitment to review, revise and update your Estate Plan at least every five years if not yearly (or when any major change happens -i.e. divorce, marriage, birth of child, etc.). This is a great way to ensure that your Estate Plan still reflects your wishes. It may also allow you better insight into your daily affairs/expenditures and the effect that those have on your long-term goals.

This will not only give you renewed energy to stick with those goals but, like a New Year’s resolution, gives an opportunity for personal and family reflection. In short, it is a terrific and inexpensive investment of time and energy with tremendous dividends!

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What questions do I need to ask?

The content of your Estate Plan will depend on you. What do you want done and what is in the best interests of your loved ones? These issues usually revolve around two key questions – 1) who gets what; and 2) how. Basic planning should at least answer the following:

  • If you become incapacitated who will look after you and your affairs?
  • Do you require a Will?
  • Who do you want your property to go to?
  • Who should administer your Estate after you die?
  • Who will look after your minor dependant children, if any?
  • How can you minimize the taxes your Estate will pay?
  • Will there be enough money to pay both taxes and debts?
  • How do you want your property distributed?
  • Should you hold property jointly so that it passes by right of survivorship?
  • Who should proceeds of insurance or retirement benefits go to?
  • Who do you want to tell about your plan?
  • Do you need to consult a professional?

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What about Tax Planning?

Good Estate Planning also includes tax planning. You should therefore consider it as part of your Estate Plan. If you have a tax accountant or tax lawyer that you use, you should consult them to assist in your Estate Plan.

If you do not have any ongoing tax advice, you should obtain as much information as you can to help minimize income and Estate taxes that your Estate would be liable for on your death.

This may include setting up inter vivos trusts, ensuring that property is jointly held (so the right of survivorship applies), Estate freezes and other vehicles to minimize tax.

You may not need any of this but at a minimum you will want to consider (if you don’t know) what amount of tax liability will be incurred by your Estate so that you will have some means to fund it (cash on hand or the ability to liquidate various property to be able to satisfy any tax liability).

It is reputedly the case that Jacqueline Kennedy Onnassis’ children had to auction off some of her effects (dresses, art work, etc.) not because they wanted to get rid of them, but to have enough cash to pay the outstanding tax bill – a fact that is often quoted in Estate/Tax Planning fields to ensure you use their services.

If however you are one of the vast majority who do not need complex Estate or Tax Planning, then the simple Will that we provide will be sufficient for your purposes. If you have any doubt as to whether or not you require professional advice, we would recommend that you satisfy yourself by consulting an Estate Planning Professional.

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Who can make a Will?

You can execute a legal Will if:

    • You know what a Will is, why you are making one and what your Will does;
    • You take into account individuals that you would normally provide for (spouse, children, dependent parents, etc.); and
    • You understand the nature and effect of your property and how you should distribute it (i.e. you know what you have and how much you have).
  1. You are old enough.
    In the United Stated this means that you have reached the legal age of 18 (for all states). This is not necessarily the age of majority, which is 18 – 21 years depending on the state. Most jurisdictions allow persons under the legal age (or age of majority as the case may be) to make a Will if they are married, in the military service or in some states are considered legally emancipated (have been declared an adult by Court Order).
    In most Canadian Provinces the age of majority governs. (18 – 21 years depending on the province)

    and

  2. You have testamentary capacity (legal way of saying “of sound mind”). This generally requires that:

A Court is extremely hesitant to interfere with your wishes and therefore a person must be extremely incapable of understanding what is going on around them before the Will would be set aside or invalidated by a Judge on the grounds of your incompetence. If you simply forget from time to time or even if you have insane delusions but you are capable on the day you read and sign your Will to understand what you are doing, that would be considered of sound mind.

In instances where there is any doubt about your mental state (capacity), lawyers will often obtain several certificates from family doctors or treating physicians testifying to your competency for the purpose of making a valid Will. If there is any doubt about your competence, you should speak to a lawyer or your doctor before preparing and executing your Will.

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Do I need to consult a lawyer?

Absolutely not! People have been making their own Wills for hundreds of years. It has only been recently that Lawyers have made Will making needlessly complicated and expensive. Most people can do a simple Will on their own, which is often better than no Will at all.

Howard Hughes for example, did not make a Will because he hated lawyers. This resulted in over twenty so-called Wills being brought forward after his death, none of which were declared valid by the Court. The ensuing legal battle was extremely expensive and tied up his Estate for years. He could have avoid all this by using our service – he would agree that the price is right! Lawyers have convinced people that Wills are imponderable legal instruments requiring special expertise. This is not true. Although a lawyer should be consulted for complex Estate Planning, when it comes to simple Wills, most law firms have standard forms on their computer and have their assistants fill out the forms, similar to what you can do on this website. In fact, some lawyers even use our site to prepare client Wills. Most people can safely make a Will themselves using our service. You should consult a lawyer if:

  • You do not understand any of the information we provide
  • You have questions that are not answered by our information
  • You have significant assets in various countries
  • Your Estate amount is over $650,000.00 U.S. (Estates below this amount are not subject to Estate tax)
  • You wish to distribute your property in more detailed ways than provided for in our will form
  • You have a Family Trust or would like to create one
  • You are going to get married (once you are married, any Will made prior to that marriage is revoked by operation of law)
  • You have used our form to prepare your Will but would like to have it checked by a lawyer to make sure it is validly executed.

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What a Will Does

Your Will should appoint an Executor and give them instructions for distribution of your Estate. You should also appoint a guardian or guardians for any dependant child or children (children who are under the age of majority or incompetent). You may also want to provide for your burial (even though your Executor may not be required by law to act on your wishes – they will if you have chosen an Executor who will follow your wishes).

The law in each jurisdiction controls whether a Will made by a resident is valid. Some provide for stricter requirements for signing the Will and others will even allow an individual to write out or use a printed form and sign by themselves to create a valid Will (“Holograph Will”).

You should make your Will in the jurisdiction where you live. If you move to another, don’t worry. A Will that is valid in the jurisdiction where it is made, is also valid in most other jurisdictions.

If you are living temporarily outside of your home state or province, your Estate is where you have your permanent residence (in law considered your “domicile” or “state of record” if in the military). Its Probate laws govern. If you are living outside the United States or Canada permanently we suggest you do not use this Will form without first satisfying yourself that it would be valid. Please seek legal advice.

Below are the minimum legal requirements to make your Will valid. It must:

  • State who you are and where you live
  • Include at least one operative or substantive provision – either giving away some property or naming a guardian to care for minor or dependent children
  • Be dated, and signed by you
  • Your signature be witnessed by two people (three in Vermont, New Hampshire and North Carolina), who have seen you sign and see each other sign and who are not beneficiaries or spouses of beneficiaries under your Will.

Additionally, although not required, it is wise that your Will also:

  • Name an Executor
  • Be simple, straightforward and avoid legal jargon unless you fully understand what you mean by those words.

Although people sometimes have their Will notarized it is not required in order for the Will to be legally valid; nor does the Will have to be typewritten. A handwritten or printed Will or pre-printed Will is valid if the above requirements are met. It is not necessary that you be present for or have input into the creation of your Will, as long as you read (or have read to you), understand and agree with the content of the Will that you execute.

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What a Will Does Not Do

A Will is not a guarantee that everything will take place after death as you wish, as the Will and the distribution of your property pursuant to the Will is governed by laws in each jurisdiction.

Someone may later try to claim that you were incompetent at the time you did your Will and challenge it. Equally, if there are not enough assets in your Estate to be distributed pursuant to your Will, then the law provides how the property will be distributed.

This said, a Will is the best way that you can ensure that your wishes will be complied with.

Bear in mind that a Will does not become operative until you die. As such, if you want to have someone look after you in the case of an incapacity or an extended absence from the jurisdiction, then you will want to execute a legally binding Power of Attorney. You may also want to create a legally valid “Living Will” to provide direction to your health care provider in the event of coma or other serious medical aliment, from which there is no reasonable prospect of recovery.

This may include a Power of Attorney for someone to give your health care directives to your medical advisors, including “do not resuscitate” orders or directions and restricting the type of medical treatment that you receive for any personal or religious reasons (i.e. prohibition against receiving another’s blood, etc.).

Finally, a Will does not deal with any property that does not fall into your Estate. If for example you hold property jointly with another, then the right of survivorship applies and your interest in that joint property goes directly to the surviving owner.

Some states have limited or abolished joint tenancy. If you live in Alaska, Ohio or Texas, you should check with a lawyer to see what you really “own” for the purpose of giving it away in a Will. In Alaska there can be no joint tenancy in real estate except for husband and wife. In Ohio the owner agreement must expressly state that the property is “for their joint lives, remainder to the survivor or them”. In Texas, the right of survivorship must be created by written agreement between the joint owners.

Remember, a joint tenant cannot use a Will to leave his or her share of a joint tenancy property to someone else because it does not fall into your Estate, rather passes automatically on your death to the surviving owner(s).

In some states there is also created a “tenancy by the entirety”, which is basically the same as joint tenancy with the right of survivorship noted above, but limited to married couples. The phrase “tenancy by the entirety” or “as tenants by the entirety” must appear in the deed or instrument creating the tenancy. When one spouse dies, the entire interest in the property automatically goes to the surviving spouse.

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Do I need a Will?

Perhaps not. Every jurisdiction provides a law that disposes of your Estate if you did not make arrangements to dispose of it yourself. Technically these laws do not amount to a “Will”, but they often accomplish the same thing that a Will does – they dispose of your property on death.

As a Will is called a testamentary instrument – if you die without making a Will, you are deemed to die “intestate” and the laws that deal with the intestacy are often referred to as “intestate succession” laws or the laws of “dissent and distribution”. It attempts to divide your Estate in a manner that accords with what people usually do. For instance, in most states, if a person dies intestate their property will pass one half to their surviving spouse and one half to their children. If you are familiar with the intestate succession laws in your jurisdiction and are happy with that distribution scheme, there is no absolute need for a Will.

Failure to create a Will, however, could lead to more problems for your beneficiaries. For example, someone would have to apply to the Probate Court (the Court that looks after Estates whether you leave a Will or not) to be appointed as the administrator of the Estate. As another example, if you have not legally adopted a child that is dependant on you, they may not be provided for without a will.

Further, you may not need a Will if you give all your property away before you die by inter vivos gifts or put all your property into an inter vivos trust (inter vivos means literally “between the time you are living”). These types of trusts are also referred to as living or family trusts.

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Do I have to make a Will?

No. The law does not say that you must make a will. However, making one should give you peace of mind and make it easier for your family or friends to handle your affairs when you die for all the reasons discussed on our site.

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What is an Executor?

An Executor steps into your shoes at the time of your death and distributes your property according to your Will. Additionally, your Executor may also be a Trustee under a trust that you might create in your Will (not provided for in our form).

Your Executor should be someone that you trust without hesitation. As the money they are dealing with is intended for your loved ones, you want to make sure that they are reliable, honest and have enough business sense and organization to get the job done. It should be an individual that you “trust with your life” or more to the point “trust with the lives of your loved ones”.

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Why choose a Professional Executor?

In large Estates, individuals often want a Trust Company or similar service involved, to ensure that assets are properly administered and trust funds properly paid out to your beneficiaries.

Even in small Estates however, you may not have anyone you trust, or even if you trust them, you may not feel confident that they would be able to handle the duties of an Executor.

In those instances you may choose a professional Executor such as a Trust Company or company that is dedicated to providing professional Executor services such as Lexicon Legal Services. If you require the service of a professional Executor and would like to discuss this service with us, feel free to contact our legal services division at [email protected]

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Can I have a joint Will with my spouse?

Yes, but it is definitely not recommended. A joint Will is a single document signed by two Testators and validly signed and witnessed and intended to act as a Will for both of them. It is generally not a good idea and in fact some would say it is worse than having no Will at all because of the confusion that it can create.

In a typical joint Will a husband and wife would leave each other everything, and on the death of the survivor of them, all the rest to their children, etc. This can lead to various legal questions; for instance can the survivor change their mind and make a new will?

Some cases have held that no, you cannot. The joint Will is considered irrevocable on the theory that the first spouse died thinking that his spouse would honor their agreement to have one Will left intact.

The better course of action would be to have two Wills that would be considered “mirror” or “reciprocal” Wills where in each document you leave everything to one another and then to your children. Given that our service is free, you can easily make both Wills on our website.

If in fact you want to actually lock yourself in, then it is possible to do a Non-Revocation Agreement of separate Wills; or better still, you and your spouse could create an Irrevocable Inter Vivos Trust (“living trust” or “family trust”) and transfer all your property to the trust. In such a case we recommend that you speak to an Estate Planning professional to get proper advice.

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Does my Will affect my insurance policies?

Not unless you include an insurance designation clause in your Will. If you do not have such a clause, then whoever you have named as your beneficiaries under your insurance policy will receive the insurance payment directly because the insurance proceeds would not form part of your Estate.

If for any reason you want to change a beneficiary designation on an insurance policy you should do so directly, to avoid the proceeds of that policy falling into your Estate (as you may pay Estate or Succession taxes and/or fees based on the amount of the property in your Estate).

If however there is a specific reason for wanting to have the insurance proceeds fall into your Estate (to fund income tax liability or cash bequests, etc), you can include an insurance designation clause in your Will which would have priority over any prior designation under an insurance policy (if you stipulate this properly). In such a case we recommend that you speak to an Estate Planning professional to get proper advice.

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Do I have to list all my property in my Will?

No. You can be very specific as to who gets what by way of specific bequests (named gifts) or you can be general by leaving “all of my property” to an individual.

Additionally, if you do want to leave specific personal items to loved ones as a remembrance of you but would rather not list them in what may be a publicly filed Will, you may want to use a Memorandum given to your Executor containing a list of items and who those items go to.

This private Memorandum is still perfectly legal and binding if it meets certain requirements – must be in writing and in existence at the time the Will is signed and it must be identifiable as the paper referred to in the Will, which refers to it.

If you wish to leave such a Memorandum, you should seek advice from an Estate Planning professional. For most people, however, our simple Will form is sufficient.

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What about family trusts?

Family trusts are usually set up during your life time in an instrument called a “Revocable Inter Vivos Trust” which may be amended or totally revoked at any time during your lifetime as long as you remain competent.

A trust is a written agreement between the person setting up the trust (known as the “Settlor” or “Grantor”) and the person or institution who manages the assets held in trust (commonly known as the “Trustee”). The Trustee may be an individual or bank or trust company and would be obliged to carry out your instructions contained in the written Trust Agreement.

The written agreement gives the Trustee the legal right to manage and control your property for the benefit of persons or institutions that you name (known as “beneficiaries”) who would receive the income or principal of the trust. It also guides the Trustee in the management and distribution of the trust property.

The Trustee is considered a fiduciary (Latin word for a trustee) and owes a duty of “utmost good faith” to the beneficiaries to act in their best interests.

It is also possible under your Will to create testamentary trusts wherein property is left in trust according to the terms of your Will.

If you would like to create family trusts that would provide for terms and payouts other then as our Will provides, you should seek the advice of an Estate Planning professional.

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What about community or joint property?

If you are single, divorced or widowed, please ignore this section.

The vast majority of married couples leave all or most of their property to their surviving spouse at death. All jurisdictions have marital property laws which usually provide for a 50% presumption in favor of your spouse in any property that you hold (whether title is in their name or not).

If you want to leave some gifts to other family members, friends or institutions, your matrimonial property situation will usually be straightforward as long as one half of your Estate is left to your spouse.

If however you leave substantial amounts to someone instead of, or in addition to your spouse, the waters can be muddied, and if this were the case you should seek the advice of an Estate Planning professional or a family law lawyer. The other option is to have your spouse consent to your plan for property distribution and release any property rights that they may have in such property.

For the purpose of your Will your marital status is important. While many couples have gone through a form of marriage and understand they are married, it is possible that they may not be married in the eyes of the law. Likewise, even if you have not gone through a form of marriage, you may be considered to be married on the basis of common law.

If there is any doubt as to your marital status for the purpose of creating your Will, please consult an Estate Planning professional. Consider the following:

  • If you are separated but not yet divorced, your estranged spouse may have a right to inherit 1/3 to 1/2 of what you own and if your Will gives all of your property away to others, then all who you wish to benefit in your Will may not be able to inherit due to the claims of the spouse.
  • If you are involved in divorce proceedings, or contemplating marriage; it is okay to make a Will now, but you should make sure you write a new Will after your divorce is finalized or you marry. If you marry after making a Will, your Will is revoked by “operation of law” unless the Will states that it is in contemplation of marriage and names the individual who you propose to marry and deals with them in the Will.

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What about my Children?

One of the most important reasons for creating a Will is to ensure that your children are provided for. In the case of minor children this would include naming a guardian for the children, who would look after them in the event you and your spouse both die.

If only one parent should die then the surviving parent normally has the legal right to assume sole custody. This applies to biological and legally adopted children, but may not be the case if you are acting as an informal guardian for a child or as a step-parent. In that case you would not generally have sole right of custody without being appointed by the court. As such, you need to designate a legal guardian in your Will.

In addition to naming a guardian for your children’s person, you can also name a different guardian for their property (estate). If you have named a guardian for the children’s person that you trust, there is usually no reason the same person could not be named as the guardian of your children’s estate.

In complex Will situations the guardian of the estate is often the trustee under the Will while the trusts are being administered (but does not have to be the case).

If you have a child or adopt any children after your Will is done and your Will specifically names who your children are (and therefore does not name the new child) you should prepare a new Will.

There are individuals who want to leave nothing to their children regardless of their age. It is legal to disinherit a child as long as it is clear that the disinheritance is intentional rather than accidental. In some jurisdictions, a child not provided for in a Will has a statutory right to a portion of their parents estate (known in some jurisdictions as “testators family maintenance” legislation).

If you do wish to intentionally disinherit a child our Will form is not sufficient. In such a case please consult an Estate Planning professional to get proper advice.

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Do I have to let anyone know about my Will?

No, you do not have to but it is always a good idea to at least let the Executor know that they have been named in the Will (unless there is any reason you do not want to). It is also helpful to let them know where to find the Will so if anything happens to you they take immediate steps to get the Will to determine if there are any funeral wishes that they have to honor.

It is also helpful to speak to the Guardians, if you are appointing any for your children, to make sure that they are ready, willing and able to act as Guardians if anything should happen to you. That way when something does happen they will take immediate steps to make arrangements for the children as soon as they hear of your death.

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Where should I store my Will?

It is best that your Will be stored in a fireproof safe or vault or safety deposit box. You may also want to consider keeping it in a location that would not be accessible to anyone who should not see your Will (ie. children or other family members if you make unequal distributions etc.).

Bear in mind that if your Will is accessible and if someone was so inclined, they could tamper with your Will.

If you are storing it in a safety deposit box most financial institutions will allow access to an individual who claims to be the Executor for the purpose of determining that your Will is present and if so once they are satisfied that the person is the Executor, the Will will normally be released to them.

In most jurisdictions the probate court will accept your Will for safe keeping for a small fee. If it is stored with the probate court, it is not released to anyone but you, your Executor or your personally authorized representative.

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Can I sign more than one copy of my Will?

Yes, you can but is not recommended. In the event that you want to revoke or cancel your Will it will be necessary to make sure that you destroy all original copies. Having more than one original signed Will also makes the “Will” more susceptible to tampering as presumably you are storing the originals in different places (why else have more than one copy).

As such, only one original Will should be signed although it is prudent to keep a photocopy of that Will in a safe and secure place in your home or office so that it can be reviewed as need be (assuming that the original is in a safety deposit box or probate court).

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Do I need to update my Will?

Perhaps not, but it is highly advisable to review it at least every five years and certainly in the case of any life style change (marriage, divorce, new child, increase in wealth, etc.). Remember that estate planning and will creation is an ongoing process and should evolve as you and your family’s goals and desires do.

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Can I ever cancel or change my Will?

Yes, and you should in many instances. If you do make a new Will make sure that you revoke any old Wills and the old Will should be destroyed. It is okay to keep a photocopy of the old Will but some recommend that those photocopies be destroyed as well.

You can revoke a Will by destroying it or by preparing a document that would actually revoke it (such as a new Will or revocation instrument).

If you want to change your Will, you can do so by adding a Codicil or by revoking and preparing a new Will. Our service is free so why bother trying to use a Codicil – make a new Will!

Your Will could also change unintentionally. If for example, you left certain property in your Will to someone but in the meantime that property was destroyed or sold by you. If the property is not available to be given as set out in the bequest in the Will, it is said to be “adeemed” and the beneficiary gets nothing.

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Can my will be changed or canceled without me doing anything?

Yes. It can be revoked or changed by operation of law. If for instance you make a Will prior to getting married and it is not a Will “in contemplation of marriage” then on marriage your Will becomes void. Additionally, if you do not provide for your spouse or children the court could, under matrimonial property laws, estate or Family Maintenance legislation, change your Will (in many jurisdictions).

Most people think that your Will is null and void if you get divorced. It is not and therefore if there is a separation or divorce you should effect changes to ensure that your wishes are current.

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What happens when I die?

As soon as you die your property passes by law to those named in your Will. It is still necessary to prove that the Will at issue is your “Last Will and Testament” and that involves court proceedings in the Probate Court.

Typically, your executor would be responsible for probating your Will. If they choose not to they can renounce and then an administrator will have to be appointed by the Probate Court (usually your next-of-kin).

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What is Probate?

In a probate proceeding the court oversees the process of identifying what is to be your Last Will and Testament and required proof of the Will in common or solemn form. It also oversees determination of your estate by a formal process of inventory and valuing of your property, advertising to creditors and ensuring that any debts are paid.

It will ensure that your heirs at law are identified and that the property is distributed to them. Of course most of the work is done by the Executor who will often require the assistance of an lawyer or an accountant. The lawyer who does the estate work is called the Proctor in most jurisdictions.

Of course any property that does not fall into your estate such as life insurance, retirement accounts and joint tenancy property passes directly to the appropriate beneficiary or survivor automatically. Also if you have created a living or family trust that property is not yours and therefore is not subject to probate. Various bank accounts and motor vehicle titles may also be a joint account or specify a death beneficiary.

Probate does provide important benefits. First, and perhaps most importantly, it ensures that the Estate administration is done properly, because the court supervises the process. Also once the “creditors claim period” expires (generally 4-6 months after the executors’ advertising takes place) it is very difficult for creditors or others to claim an interest in the estate. Probate does have some drawbacks and therefore some people look for ways to avoid probate. (see section below “How can I avoid Probate?”)

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How can I avoid Probate?

Probate can increase the expenses for your Estate. This is especially so if it is a large estate and it incurs and attracts estate and succession taxes, duties etc. Furthermore, any challenge of the Will will likely be expensive for the Estate and beneficiary.

The fact is that formal probate takes at least six months and often one year. In complex cases and in rare instances Probate can drag on for ten to twenty years. Add to this the fact that probate can be expensive because of the fees paid to professional advisors, executors, probate courts, etc. These are some of the reasons why you may wish to avoid Probate.

Perhaps the best way of avoiding probate is by disposing of your property before death i.e. inter vivos gifts or inter vivos family trusts or other trusts, having contractual arrangements such as a life insurance where pertinent beneficiaries are named and taken outside of your estate, using joint ownership so that the right of survivorship applies.

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Can someone challenge my Will?

Yes, although the vast majority of Wills are probated or dealt with without any problem. It does happen that individuals are unhappy with what they received or did not receive and may challenge your Will. However, over 99% of all Wills submitted for probate are ultimately confirmed as the official Will in spite of any challenges that may have been made.

Not just anyone can contest a Will. It is generally accepted in most jurisdictions that only persons “interested” in the estate have “standing” and are allowed to contest the Will. Interest is usually determined by asking the simple question whether or not the individual stands to gain something if the Will contest is successful.

For instance, a spouse, child or close relative (generally any “heirs”) who would inherit if you had left no Will would have standing to contest the Will but not the heirs of those heirs.

Additionally, you cannot contest a Will solely because you are not happy. In order for a Will contest to succeed or be advanced you must have legal grounds, supported by cogent evidence which would cause the Will to be rejected by the probate court. These include:

  • Testamentary capacity – testator was incompetent at the time the Will was created.
  • Lack of formalities – the Will was not properly witnessed or was not properly signed etc.
  • Undue influence – someone exerted unfair influence and took advantage of the testators susceptibility and coerced them to make a Will different from what they would have made on their own.
  • Fraud or mistake – a testator was induced to sign the Will as a result of deceit, fraud or some mistaken belief.
  • Revocation – the Will was canceled or revoked by the testator as not the “Last Will and Testament”.
  • Fraudulent Will – the Will offered for probate was not the Will of the deceased. It was forged or tampered with etc.

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Do I have to leave my property to anyone?

Unless required by law to provide for a spouse or children as noted above, it is not necessary to leave your property to anyone or any institution. If you have no living relatives then the state would receive everything if you did not leave it to anyone.

As such, if you do not have any relatives you may wish to leave your property to a charity or better yet, gift some of your property before you die and claim the deduction against your income tax.

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What about living wills and durablePowers of Attorney?

In a Power of Attorney, you appoint an attorney to act on your behalf while you are living, usually in the event you become incapable or incapacitated. There are two types of powers of attorney, a Power of Attorney for property and a Power of Attorney for personal or health care.

When having either prepared, there are a number of basic decisions:

  • Who do you want your attorney(s) to be?
  • Do you want to appoint any alternate attorney(s)?
  • Do you want to place any conditions and restrictions in your power(s) of attorney?
  • When do you want the power(s) of attorney to become effective?
  • Is any compensation to be given to your attorney(s)?

If you decide that you require a P.O.A. please consult an Estate Planning professional.

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Any other questions?

No doubt there will be questions that you have that we have not answered. If so please consult an Estate Planning professional.

Thank you for you interest and the investment of your time.

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