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Monday, September 27, 2010

How bulletproof is your Will?

Having your executor or your family members end up in court because of a poorly-written Will is the stuff of nightmares. While it is never possible to make any legal document 100% bulletproof, there are many ways to make sure a Will is as strong as possible. Ask yourself whether the following statements are true of your own Will:

  • You've appointed an executor/trustee who is physically and emotionally capable of doing the job you're asking him or her to do.
  • Your executor/trustee is not in a conflict of interest position.
  • You are not forcing people who don't get along normally to act together as executors.
  • You've appointed at least one alternate executor.
  • Your Will sets out how much your executor is to be paid for acting as executor.
  • You've discussed your wishes for the disposition of your remains with your executors.
  • You've appointed a guardian for minors.
  • You are aware of your legal obligation to provide adequate support for your spouse, your minor children, and adult handicapped children, and have provided that support in your Will.
  • Your Will provides for a gift to be given to an alternate beneficiary if the first-named beneficiary should die before you.
  • Inheritances for minors and handicapped adults are to be held in trusts.
  • You've set up trusts for any others you feel might be vulnerable if given money, such as a young adult or a child with an addiction.
  • Your Will gives clear instructions on how trusts are to be handled, such as describing the age at which minors may inherit their shares, allowing for encroachment on an as-needed basis, and dealing with the "even-hand" rule.
  • Your Will describes who is entitled to receive personal and sentimental items, and how such items are to be divided among them.
  • You and your accountant have discussed the tax implications of disposing of your real estate, your business, your personal property and your financial assets.
  • You've taken steps to minimize taxation on death, and to have cash available for tax that can't be avoided.
  • Your beneficiary designations (on life insurance, RRSP, RRIF, LIRA, TFSA etc) are up to date and do not conflict with anything in the Will.
  • You thoroughly understand the legal and tax implications of jointly-owned property.
  • You have not put your children's names on any of your assets without legal advice.
  • Your shareholders agreement doesn't conflict with anything in the Will.
  • The Will supports and carries out the plans for business succession planning that you've already begun.
  • Your Will works together well with your spouse's Will.
  • Your Will contains extensive powers for use by the executors and trustees so that they will not have to waste time and money in court asking for permission to take steps on your estate.
  • Your Will contains a concise line or two to explain a provision in your Will that appears at first glance to be unfair or illogical.
  • Your wishes are clear and complete. Your executor will have no trouble identifying the beneficiaries and the property each one is to receive.
  • You haven't imposed any impossible or unreasonable conditions on the beneficiaries.
  • You haven't made any promises to anyone that are ignored in the Will.
  • You haven't made any changes to your Will against your better judgment or because someone was forcing or pestering you to make changes.
  • You weren't confused, disoriented or medicated on the day you gave your instructions for your Will or  on the day you signed it. You have a clear memory of your involvement in the discussion.
  • Nobody else spoke for you during your meeting with the lawyer; you were able to speak for yourself.
  • Your Will was properly signed and witnessed.
  • The Will was not made before you were married.
  • The Will has been reviewed periodically since it was first made.
  • The Will has not been written on, nor have parts of it been crossed out.
  • The Will was drawn up by an experienced lawyer who you are certain understands your goals and concerns for estate planning.
  • The Will is written in language that you can understand without needing a lawyer present to translate.
  • The document is accompanied by an Enduring Power of Attorney and healthcare directive.
  • The Will has been reviewed with your accountant or financial advisor.

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