What should I put in my will?

Hello to readers, we will be starting the discussion in about 10 minutes. I just wanted to check in with Saman Jaffery quickly to get us set up. If you have any questions in advance, you are welcome to submit them. This is a moderated discussion so you may not see your questions appear right away as we try and keep questions and answers together for clarity.

by Christina Varga 8/23/2012 4:52:08 PM
Thank you for joining us, Saman.

by Christina Varga 8/23/2012 4:52:24 PM
Good afternoon, Christine. Thank you for having me today. I look forward to our discussion.

by Saman Jaffery 8/23/2012 4:56:14 PM
All right, it looks like everything is in place. Let’s begin our discussion. I will start with a question that was left in the comments earlier by kiwicurler: What problems arise in an Ontario will when the executor is now located in England and two beneficiaries also reside in Europe and New Zealand?

by Christina Varga 8/23/2012 5:01:56 PM
That’s a great question, and an issue that often arises, given that an executor or beneficiary may move after a Will is written. Appointing a non-resident executor logistically and from a tax-perspective complicates the administration of the estate, and is often not the best choice. The non-resident executor may need to hire an agent to assist in Ontario. An estate (or a trust created in the Will) may be considered a non-resident trust if there is a non-resident executor (or trustee) and may, depending on the circumstances, be taxed as a non-resident trust – a qualified accountant should be consulted to discuss the tax issues which can arise. Also, an executor residing outside a Commonwealth jurisdiction may be required to post a bond as security prior to commencing administration of the estate, which adds to the costs of estate administration…

by Saman Jaffery edited by Christina Varga 8/23/2012 5:08:41 PM
… Non-resident beneficiaries can also complicate the administration of an estate, especially if there are trusts involved. Where there is a non-resident beneficiary, we generally consult the services of a qualified accountant to determine if any distributions or payments to the non-resident beneficiary require any special tax considerations.

by Saman Jaffery edited by Christina Varga 8/23/2012 5:11:26 PM
A question by DCK: I've heard that a handwritten will is legal, but a typewritten one (both duly witnessed) may not be legal.

by Christina Varga 8/23/2012 5:11:54 PM
A will that is written completely in the hand of the testator (i.e. the person who is making the will) and signed at its end by the testator can be considered to be a valid will in Ontario. Such wills are known as “holograph wills”. A holograph needs to be entirely in the handwriting of the testator. A holograph will does not need to be witnessed…

by Saman Jaffery edited by Christina Varga 8/23/2012 5:15:37 PM
…In Ontario there are very strict rules regarding the formalities of how a will should be signed, the number of witnesses required, and who may not be witnesses. A holograph will is an exception to the general rule regarding strict compliance with these formalities of execution. A typed Will or fill-in-the-blanks Will does not qualify as a holograph will, and is therefore subject to the formalities of execution.

by Saman Jaffery 8/23/2012 5:19:00 PM
I’ve had a question sent to me by Stephen: I am divorced with one young child...how do I handle leaving the bulk of my estate to her when she is still a minor and won’t be an adult for more than 10 years?

by Christina Varga 8/23/2012 5:19:27 PM
Another good question and one that often arises. In Ontario, a minor cannot receive money until he or she reaches the age of majority (18). Generally, many parents will create trust provisions in their wills for the benefit of minor children – appointing trustee(s) to manage funds or property on behalf of the minor child and directing when funds can be paid out to the minor child (i.e. how/when income earned by the trust funds is paid; when capital distributions can be made; whether funds can be used for education, health, etc.; at what age will all of the funds be paid to the child)…

by Saman Jaffery 8/23/2012 5:24:46 PM
Also, if you have support obligations to a minor child, it is important to remember that these support obligations continue after death and need to be addressed in your estate planning. If adequate provisions are not made for the benefit of the minor child, this can result in unwanted litigation…

by Saman Jaffery 8/23/2012 5:27:47 PM
Also, many people commonly maintain life insurance policies for the benefit of minor children (usually, with a trustee named to receive the insurance funds) to deal with support obligations. Life insurance designations can also be addressed and included in your will. It is important to discuss any support obligations with your estate planning lawyer so that appropriate provisions can be included.

by Saman Jaffery edited by Christina Varga 8/23/2012 5:29:14 PM
What do I do if I don't want a family member to be my executor? Is that ok/allowed?

by Reggie McBanff 8/23/2012 5:29:37 PM
There is no requirement that the person (or persons – you can appoint more than one person) to be your executor(s) be related to you. Often, people select their spouse or adult children to be their executor(s). However, you do not have to select a family member if you do not wish to. You can appoint a friend, accountant, advisor, etc. You can also appoint a trust company as your executor, if that is appropriate for your circumstances...

by Saman Jaffery 8/23/2012 5:32:59 PM
... Whomever you decide to name as your executor, remember to have a discussion with that person before you finalize your will and make sure that they are willing and able to assume the responsibility of being an executor. With a trust company, you will be required to sign a contract and finalize a compensation agreement. You should also review your will every few years, or sooner if required, to make sure that person(s) you have named as your executors are still an appropriate choice – they may have moved out of the area, may no longer be suitable because of age or health, etc.

by Saman Jaffery 8/23/2012 5:36:26 PM
Saman, the next question refers to Ontario, but are there basic elements you would ensure you have anywhere in Canada? Here comes the question:

by Christina Varga 8/23/2012 5:37:24 PM
In Ontario, what are the absolutely essential elements of a will? In other words, if everything extraneous were to be stripped out, what would be critical for the will to be valid?

by DCK 8/23/2012 5:37:28 PM
DCK, that is a difficult question to answer without further context – whether a will is valid can be a very fact-specific analysis. In Ontario, a challenge to the validity of a Will may include any or all of the following allegations: Lack of testamentary capacity; Lack of proper execution; Undue influence; Suspicious circumstances; and Fraud. If a Will is found to be invalid for any of these reasons, the entire Will will be invalid – and the person will be considered to have died intestate (i.e. without a Will)…

by Saman Jaffery 8/23/2012 5:43:16 PM
…That said, certain provisions in a Will may fail (for reasons which include vague/uncertain wording or the provision being void for public policy) – if that happens, that will not necessary render the entire Will invalid. It may be necessary to seek the advice and directions of a Court to resolve any such problematic provisions.

by Saman Jaffery 8/23/2012 5:46:41 PM

What should I put in my will?

wills, estates, financial road map, personal finances, financial planning, death