Why You Shouldn’t Put Off Wills And Estate Planning

Note: The following is a guest post from lawyer Manda Ivezic. Manda practices in real estate, wills & estates, and small business law in London, Ontario and provides wills at a very reasonable rate of $300 for an individual and $475 for a couple.

A recent LawPRO survey estimated that 56% of adult Canadians don’t have a will. Wills were least common for 27-34 year olds – 88% didn’t have one – and 71% of respondents didn’t have a power of attorney.

Why do so many of us put off wills and estate planning? Common reasons to delay estate planning include:

• You’re too young to anticipate your death – you see yourself living a long and full life, dying of old age far in the future. You have plenty of time ahead of you to take care of your will.
• It’s overwhelming or unpleasant to think about.
• You think it’s unjustifiably costly.
• You don’t think you’re wealthy enough to need a will.
• You don’t realize how important it is, because you don’t understand what exactly will happen in the absence of a will or power of attorney.

The problem with putting off wills and estate planning is that you can’t safely assume how the future will play out.

Delaying may mean it never gets done – an accident or illness could make you incapable of creating a will. Not preparing will and estate plan only makes a bad situation worse. The consequences of dying without a will can easily outweigh the time and cost of making your will.

As well, a lawyer’s input can result in substantial cost savings down the line compared to the upfront cost, maximizing what is left to your beneficiaries. A will also saves time and trouble down the road. At the very least, appointing an executor will prevent someone having to apply to court to be appointed as your estate’ executor – an avoidable burden at the worst time for your family.

Get this task out of the way and give yourself peace of mind. Here’s what you need to know when creating a will and estate plan…

How long does it take? What’s the process?

Really, the process is painless. In my practice, it’s usually two to three weeks between the initial meeting to the signing appointment. Spouses/partners should attend together to be sure they are on the same page about expectations.

Initial meetings usually take about 45 minutes for an individual, and up to 1.5 hours for a couple. The lawyer will take note of your assets and debts, to understand the net value of the estate and what is passing outside the estate (for example, jointly held property passes to the surviving owner; life insurance proceeds, TFSAs, RRSPs, and pension benefits go directly to designated beneficiaries). You will discuss appropriate executors, guardians of minors, beneficiaries, distributions, and possibilities to reduce the estate’s taxes.

I forward clients a draft will within a few days, with an explanatory letter in plain language. The client usually takes a few days to review the will, raise concerns or make revisions, and confirm it is ready to be signed – that last step takes only a few minutes.

It’s helpful to prepare by noting the values of your major assets (including real estate, personal and household items of significant or sentimental value, investments, life and mortgage insurance policies, pensions, RRSPs); credit card debt, outstanding mortgages, and other debts; how much your spouse can expect from your pension’s survivor benefit; etc. As well, you should consider beforehand the executors, guardians of minor children, beneficiaries and alternates. And check that your beneficiary/survivor/successor designations are correct.

Do-it-yourself kits and online apps… Worth the savings (or worth the risk?)

It’s tempting to use a lower cost do-it-yourself will kit or online app. You may think “my situation is simple, I just need a basic will”. While there may be limited group of people for whom one of these may produce an adequate will, I’d say they are never the best option, and when wills and estate planning is so affordable why take that risk?

The risk of these services is that, without having a deeper discussion of your personal circumstances with someone with legal expertise, you will miss something, and simply not know it. By having a lawyer prepare your will, you have the advantage of a thorough understanding of your situation and your options, to optimize your estate planning.

You have a unique array of assets, family, and life circumstances, which a kit or app may not fully capture. A DIY will may not state your wishes as unambiguously or thoroughly as you think. Better to have a customized document, and a lawyer to explain the meaning and purpose of each paragraph.

A lawyer can point out considerations that wouldn’t have occurred to you. Contingencies are just one example (what if an intended beneficiary dies? Or if they divorce, will their inheritance be divided as part of their net family property? What are the trust terms in case minors inherit?).

You may have misconceptions about the law or the optimal way to distribute your assets. A kit or app can’t have a back-and-forth discussion about probate tax reduction options with you.

Without legal expertise, you can’t assess the quality of a will produced by these alternative services. An error or omission could cost far more than you saved.

These services have warnings and disclaimers of liability. In particular, will kits and online apps should be avoided if you:

• aren’t sure what property will pass as part of your estate vs. outside of it
• have a unmarried partner
• intend to get married
• are separated from your spouse
• have a blended family (new partner; step-children)
• own a business or shares in a corporation
• have property outside Canada
• have minor children, children with disabilities, children who could not manage a substantial inheritance, or dependents who will be excluded from an inheritance
• own a recreational or investment property
• will advance or loan money to beneficiaries during your life

A will governs your estate – that is, all your property; the wealth you’ve accumulated; the product of a lifetime of effort. It’s the most important document of your life – treat it accordingly.

Nine key ‘watch-outs’ when estate planning

1. Your estate’s taxes, debts, expenses are paid first and then what is leftover is distributed to beneficiaries. Consider whether your estate will have liquidity to pay these off plus gift the desired amounts to beneficiaries. For example, if most of your estate’s value in in your home, and you want to leave the house itself to a beneficiary, can the estate realistically also make substantial cash gifts to other beneficiaries? Or, if one adult child receives your RRSP, your estate covers the income tax on the RRSP’s value, diminishing what is left for the beneficiaries of the residue (remainder).

2. Jointly owning property may be seen as a simple solution for avoiding probate tax, because the property (a house, bank account, etc.) passes to the surviving owner automatically, not as part of the deceased’s estate. Be cautious: moving assets into joint ownership may expose them to creditor claims, spousal claims, taxation, and loss of control over managing or disposing of the property.

3. Unmarried partners have no entitlement in the absence of a will or owning a home as joint tenants. They would be left to make a constructive trust claim or a support claim against the estate.

4. If you separate from a spouse but are not divorced, your will is still valid. It is only after a divorce that your will is read as though your ex-spouse had predeceased you. Make sure a new will is consistent with any separation agreement obligations.

5. The will of the last surviving parent with custody determines the guardian of a minor child. This appointment lasts 90 days, and within that time, someone will have to apply to court for ongoing guardianship. Discuss this with the person you are considering.

6. Unless you specify trust terms, a minor’s inheritance would be paid into court to wait until they turned 18, and someone would have to apply to have the money invested or disbursed in the meantime. My usual trust language is that a child’s inheritance will be invested and may be disbursed by the trustee for the child’s living and education expenses until they turn 25 (at 18, they are probably still not ready to manage a significant sum of money).

7. Disabled beneficiaries require more detailed consideration of trust terms.

8. Anyone can revoke their will at any time, unilaterally, without notifying their partner, and create a new will. So, a couple may have ‘mirror wills’ made together, but either can change their own will during the relationship or afterwards, or after one spouse/partner dies. One situation where this is relevant is in blended families, to ensure step-children’s inheritance is protected.

9. If an insurance policy is payable to your estate, the estate will be taxed on the proceeds. The alternative is to designate a beneficiary of the proceeds, so it will pass outside the estate.

Your estate plan is about more than only a will…

Alongside deciding on the distribution of your estate, you can also make pre-paid burial or cremation arrangements within your will and estate plan – that way, the expense is fixed, and your family has one less thing to worry about immediately after your death. But estate planning includes more than planning for death. It is also the opportunity to plan for accidents or disease that may strike during your lifetime and render you incapable of managing your affairs on your own, by preparing powers of attorney (POAs).

There are two types of POA: for property, and for personal care. A property POA authorizes someone to manage your property (of any kind – real estate, savings, investments, personal belongings, etc. – subject to your specifications) while you are incapable of doing so yourself. A personal care POA authorizes someone to make medical and other personal care decisions on your behalf while you are incapable of doing so. In either document, you can express your wishes and any particular instructions and restrictions on the attorney’s power. Your appointed attorney has a duty to act in keeping with wishes you expressed while you were capable.

As with a will, you need to have capacity to prepare these documents – so don’t wait until it’s too late. If you didn’t have a personal care POA, the law determines a default ‘substitute decision maker’. In contrast, when it comes to managing your property while you are alive but incapable, there is not a person appointed by default – not even your spouse will automatically have authority to do your banking, or deal with any other property of yours. So it is crucial to prepare a POA document to appoint someone (and a back-up).

When you’re ready to consult a lawyer about your estate plan

Check if your employee benefits include lawyer referrals at a reduced fee. You may ask:

• Can they estimate how long the process will take before the will is ready to be signed?
• Is there a discount for couple wills compared to two individual wills? Is there a package cost for wills and POAs together?
• Will you be meeting with the lawyer, or an assistant or law clerk? How much time is usually spent at the initial meeting?
• Don’t hesitate to ask for clarification. Your lawyer should be able to explain the meaning and purpose of every paragraph before you sign.
• Will you get the original will or powers of attorney, or a copy? In the past it was common for the lawyer to store the original – however this often makes it difficult to track down a will several decades later, after the retired lawyer passes their files to another firm. You may prefer keeping the original yourself in a fireproof box or safety deposit box and ensuring your executor or appointed attorney can access it.

Start your estate planning now, so you can rest easy knowing that that your affairs and loved ones are looked after.

Manda Ivezic practices in real estate, wills & estates, and small business law in London, Ontario. Follow her on Instagram @mandaivezic. This is article is based on the law of Ontario, Canada and is general information. It is not exhaustive and should not be relied on as legal advice – do not forgo detailed legal advice based on the content of this article.