Straight Talk About Wills

May 26, 2014

By Fhara Pottinger

You’ve been meaning to do it for ages. Get a Will. Perhaps some Powers of Attorney as well. It ends up on your “to do” list many times, often for several years.

But finally, now is the time, you are going to get it done. The appointment is made and you are going to see a lawyer.

What should you bring with you to your first appointment? What should you know?

1. First, think about a few things:
  • Who you want to leave your assets to? Your spouse? Your kids? A combination? What about charities?
  • Who gets Grandma’s bone china? Great granddad’s railway watch? Are these or other items worth listing in the will, or should you leave instructions separately?
  • Who do you trust to manage your estate until it can be distributed? To answer this, you need to consider how complex your assets are, and the experience of your family or friends. You may love your husband, but if he can’t balance the cheque book, can he figure out your options trading account?
  • If you have children, at what age do you trust them to manage the money?
  • Who should you designate as guardian of the children?
  • Do you have loved ones who need to have the money set up in a trust?
  • Will there be arguments over a family home or cottage? Can you plan a way to avoid that?
  • If you have a business, do you need a separate executor to deal with that?
  • Something relatively new – your digital footprint – that does not die with you – will you leave instructions in the will? Elsewhere?

Even if you cannot decide on all the answers ahead of time, starting the thinking process makes the appointment go more smoothly.

2. Bring –
  • Statements from your bank or financial advisor listing all of your accounts, the total amounts in each account, and whether those accounts are held jointly or just in one person’s name
  • Statements or details of debts – mortgages, loans, credit cards
  • Pension and mortgage statements if separate
  • Driver’s licence or other photo id.
3. Be Organized –
  • Put together a list of all extended family including their birthdates and ages
  • Organize the statements and be prepared to show them to your lawyer
  • Take your time to sort out your bank information so that the lawyer isn’t wasting time figuring out what you do and do not own
  • If you have an interest in a family cottage property or “camp” and you have access to the Transfer/Deed, it can be of great assistance in figuring out your obligations and ability to transfer that interest in the recreational property
  • This is not the time to brush anything aside to be dealt with later.
4. Be Honest – with your lawyer.
There is nothing we haven’t heard before. We dare you to try. We need to understand your complete family dynamic in order to give the best advice. So let us know if there are issues with:

  • Your marriage
  • Disabilities
  • Senility
  • Mental health
  • Addictions
  • Extra-marital relationships
  • Secret or not so secret children or grandchildren born out of wedlock (special rules may apply)
  • A bad or non-existent relationship with your child
  • A child who has been a lifelong dependent. You may not be able to cut that child out of your will in order to benefit your independent child, but you might need to plan a trust to protect the benefits the dependent child will need as an adult.

Families are messy and complex but we are here to help you. Our goal is to prepare the estate plan that reflects your wishes and addresses needs in your family.

5. Be Prepared – to talk realistically and take your time.
If you are going to need a guardian for a child, come with some options in mind. Often the adult closest to the child may not have the time, or may not have the ability to manage the money. Guardianship is often the hardest decision to make, and often clients decide to take some time to think about it after we discuss the pros and cons of individuals. Nothing wrong with that. These are important decisions.

This is the time to discuss all of your options so be prepared to take your time. Often when the client comes in telling me she wants a “simple will”, it ends up being the most complex one I draft that year.

6. Be Realistic –
If you have two children that fight like cats and dogs, now is not the time to assume they will find a way to get along while dealing with your estate. They won’t. It’ll only tear that relationship further apart as they try to undertake a complex task while grieving. Be realistic in your expectations of what your family can handle and what your lawyer can do while crafting your estate plan. Sadly, we aren’t magicians. If they have never gotten along, they are unlikely to start after you are gone. Sometimes it is necessary to step outside your family to name people just to avoid making such conflict worse. Be realistic when you evaluate your family and friends and their capacities. Emotionally difficult times are not a good test.

Your lawyer will walk you through the process, but remember – there is no such thing as a “simple will” when it is yours. By the time it is needed, you won’t be around to explain what you meant. Therefore it is very important to get it right, the first time.