It is important to have a will prepared by a lawyer and it is important to do it while you are in good health.

The will kits, which have been available for some time, are inexpensive but in the long run could cost your estate a huge amount of money and cause your family to fracture because of disputes. You may also end up with an invalid or partially invalid will, meaning that your estate may not go the persons you want it to go to and that result may cause litigation by those who are, or feel they are, your rightful heirs. The cost savings for the will kit are extremely small compared to having your family so at odds with one another that they are forced into the extremely expensive court system in order to have an independent arbiter decide how your estate should be distributed, not to mention the emotional toll on your family members.

The lawyer you choose to prepare your will will conduct a thorough interview with you to determine what assets must be included in your will and what assets may have named beneficiaries so that asset does not flow through the will, thus saving estate administration tax. If you own shares in a private corporation you may be advised to have a primary will and a secondary will so the shares flow through the secondary will and there is no estate administration tax payable on the value of those shares.

Other assets, such as RRSPs and life insurance, will be discussed with the lawyer and a determination will be made about who should be named as beneficiaries in order to accomplish your estate plan.

The ownership of certain property, such as the matrimonial home, will be discussed and changed if necessary. If the matrimonial home is in the name of both spouses as joint tenants, then on the death of one of the spouses title will flow to the surviving spouse with the registration of a simple survivorship application. If one spouse holds title to the matrimonial home it will be necessary not only to have the will probated but it will also be necessary to pay estate administration tax on the value of the home.

If there is a disabled child receiving social assistance in some form the lawyer may recommend you have a Henson Trust in the will to provide for that child in a way which will not jeopardize the receipt of the social assistance.

If your estate is large it may be wise from an income tax standpoint to have trusts set up in your will. An experienced lawyer will be able to help set up those trusts. You may also want to involve your accountant in structuring the trusts if your assets are considerable and complex.

Most parents would want to set up simple trusts in their will when leaving assets to their children. Rather than leaving the whole of the estate to a child of 18, it may be advisable to leave some portion of the estate at 18, a further amount at age 21, and then the balance at age 25 or 30. There is a danger that an 18-year-old receiving a considerable sum from your estate may not be able to wisely handle that amount and may not finish school because of the distraction. Every child is different and it is hard to predict what will happen to your child in this circumstance.

In order for you and your lawyer to spend the amount of time required to discuss your assets and prepare a will which will not require any changes for the next five to 10 years, you must be in good health and have the time to undertake those discussions. I would suggest you not call the lawyer three days before your European vacation to start the will process. I would also suggest you not think about your will when you are ill. In both of these situations there is a likelihood something will be missed or your instructions may not be what you would have wanted on further contemplation. The hospital is no place to have a meeting with your lawyer.

The discussion process leading up to the preparation of a will can be quite emotional. It is important to allow yourself the time to consider what you want and listen to the advice provided by your lawyer.

Don't put off having that will prepared. If you have an existing will you should look at it every five years to see if it needs changing. If you are not sure whether your will needs changes or think you could benefit from some better estate planning, give your lawyer a call and have a discussion.

Sally H. Burks

613-566-2840

sburks@perlaw.ca