I really enjoyed this article that was published recently in the New York Times. It was written by a journalist who described the process of deciding what to put into her will, and her thought process during that time. I saw in this article a lot of the things I hear at work, from "why do you care if you're fair? You'll be dead" to making sure every person on your list has at least one item. I thought she really captured what many people go through when making a will.
Click here to read the article. It's a good read, and you may even see something of yourself in it.
Showing posts with label complex will. Show all posts
Showing posts with label complex will. Show all posts
Tuesday, December 11, 2012
Monday, July 19, 2010
What if someone dies before the lawyer finishes their Will?
If someone has given instructions to a lawyer to prepare a Will, the lawyer has an obligation to prepare the Will in reasonable time. There isn't any number of days or weeks specified for lawyers, and it will depend on the circumstances. For example, if you meet with your lawyer to talk about Wills and the lawyer tells you that he or she is going on vacation for three weeks starting the next day, obviously you cannot expect to have your Will finished in that time.
I know of one or two cases where clients gave instructions to the lawyer to go ahead, and many months later they are still waiting for the lawyer to go ahead. I know of one who waited a year. This isn't good customer service for any service provider, so I would expect the customers to go somewhere else. However, customers sometimes feel that they "have to" use that lawyer because they've used him or her before, or because they know the lawyer personally. To me, neither of those is a reason to allow anyone to give you such poor service.
In my experience, the lawyers who take forever to prepare a Will are those who don't prepare them very often and keep putting off the task because it's unfamiliar. Lawyers who specialize in Wills have it down pat. They are up to date on everything from case law to boilerplate. Even in their busiest times, they can get a draft Will to a customer within a week or two.
In your meeting with your lawyer, you should be given an estimate of how soon your work will be done. This will ensure that both the lawyer and the customer are on the same page on the meaning of "reasonable time". If you have a complicated scenario that involves business valuation, consultations with an accountant or searching for missing information, you should expect that to take longer than usual.
A lawyer who doesn't prepare a Will in a reasonable time runs the risk that the person who asked for the Will might pass away before the Will is made. If this happens, the lawyer could be responsible to any beneficiaries who would have inherited something if the Will had been made, but didn't get anything simply because the lawyer took too long. In the last few years there have been a handful of Canadian cases in which this has happened.
The client has an obligation too. "Giving instructions for a Will" doesn't mean casually mentioning to the lawyer when you meet in the supermarket that you really need to make a Will. Giving instructions means sitting down and having a meeting in which all ideas and goals are discussed.
I know of one or two cases where clients gave instructions to the lawyer to go ahead, and many months later they are still waiting for the lawyer to go ahead. I know of one who waited a year. This isn't good customer service for any service provider, so I would expect the customers to go somewhere else. However, customers sometimes feel that they "have to" use that lawyer because they've used him or her before, or because they know the lawyer personally. To me, neither of those is a reason to allow anyone to give you such poor service.
In my experience, the lawyers who take forever to prepare a Will are those who don't prepare them very often and keep putting off the task because it's unfamiliar. Lawyers who specialize in Wills have it down pat. They are up to date on everything from case law to boilerplate. Even in their busiest times, they can get a draft Will to a customer within a week or two.
In your meeting with your lawyer, you should be given an estimate of how soon your work will be done. This will ensure that both the lawyer and the customer are on the same page on the meaning of "reasonable time". If you have a complicated scenario that involves business valuation, consultations with an accountant or searching for missing information, you should expect that to take longer than usual.
A lawyer who doesn't prepare a Will in a reasonable time runs the risk that the person who asked for the Will might pass away before the Will is made. If this happens, the lawyer could be responsible to any beneficiaries who would have inherited something if the Will had been made, but didn't get anything simply because the lawyer took too long. In the last few years there have been a handful of Canadian cases in which this has happened.
The client has an obligation too. "Giving instructions for a Will" doesn't mean casually mentioning to the lawyer when you meet in the supermarket that you really need to make a Will. Giving instructions means sitting down and having a meeting in which all ideas and goals are discussed.
Friday, July 16, 2010
What do people in a second marriage have to consider when making a Will?
Because I get so many questions about second marriages, and because it's so tricky to get estate planning right for individuals in this situation, I thought I'd talk a bit about some of the issues that specifically apply to people in second marriages. I'm not going to cover issues that apply to ALL married individuals, but only those that crop up with second or subsequent marriages.
Firstly, in some provinces, getting married automatically revokes an existing Will. If you made a Will after your divorce to look after your children, that Will was revoked when you re-married.
You'll realize when you start discussing your estate planning that you're going to have to carry out a balancing act between the various people in your life. You owe an obligation of financial support to certain people, including your spouse (married spouses in all provinces, common law spouses only in certain provinces), your minor children, and your children who are adults but who cannot earn a living due to a disability. This gets tricky for people in subsequent marriages because they often have two sets of children - one from each marriage.
I talked a bit more about that balancing act in a post here.
There are some other issues as well. For example, have you adopted your step-children? Typically people going into a second marriage only adopt their step-children if the children are quite young, but that varies. Understand that for the purposes of estate planning, non-adopted step-children have quite a different legal status than adopted step-children. If you don't make a Will at all, or the Will you have made is found to be invalid, this will make a huge difference to their rights.
If you do not make a valid Will, and your estate is to be divided among your spouse and your children, the word "children" here only includes blood or adopted children, and not step-children.
Also consider the beneficiary designations you've made on your life insurance policies and RRSPs. If you bought those items during your previous marriage, they probably designate your ex-spouse as the beneficiary. Perhaps that's what you still want, or what you are obligated to do as a result of your divorce settlement. In that case you don't have to change anything.
Most people, however, want to update their beneficiary designations to name their current spouse or perhaps the children. Do not assume that your divorce decree or your separation agreement changes those designations, because they do not. In some cases (a minority) the divorce or separation paperwork will specifically refer to a certain policy or account and talk about how it's to be dealt with; most do not. The generic wording of releasing all claims against the other's estate does NOT change beneficiary designations. You'll have to do that yourself if you want to change it.
Guardianship of minor children can also be an issue. You may have two sets of minor children who will likely have two different guardians. When you pass away, the children's other biological parent automatically has a right to custody, so you have to word any guardianship appointments for the children of your first marriage properly. I talked more about this in a post here.
For some people, leaving money in trust for the children of a previous marriage is an issue because they don't want their ex-spouse to have access to that money.
Finally, think about how the Dower Act might affect you. Most provinces in Canada have abolished the Dower Act but it's still in effect (for now, at least) in Alberta. This law gives a married (but not common law) spouse a right to live in the matrimonial home until he or she dies, moves out permanently or signs away that right. This can cause complications for someone with a current spouse who is trying to pass on property to children of a previous marriage.
If you are in, or soon to be in, a second (or subsequent) marriage, I strongly urge you to talk to an experienced estate planning lawyer to have an appropriate Will made. It's not a simple document but if properly done it will definitely save money and headaches for the people left behind after you pass away.
Firstly, in some provinces, getting married automatically revokes an existing Will. If you made a Will after your divorce to look after your children, that Will was revoked when you re-married.
You'll realize when you start discussing your estate planning that you're going to have to carry out a balancing act between the various people in your life. You owe an obligation of financial support to certain people, including your spouse (married spouses in all provinces, common law spouses only in certain provinces), your minor children, and your children who are adults but who cannot earn a living due to a disability. This gets tricky for people in subsequent marriages because they often have two sets of children - one from each marriage.
I talked a bit more about that balancing act in a post here.
There are some other issues as well. For example, have you adopted your step-children? Typically people going into a second marriage only adopt their step-children if the children are quite young, but that varies. Understand that for the purposes of estate planning, non-adopted step-children have quite a different legal status than adopted step-children. If you don't make a Will at all, or the Will you have made is found to be invalid, this will make a huge difference to their rights.
If you do not make a valid Will, and your estate is to be divided among your spouse and your children, the word "children" here only includes blood or adopted children, and not step-children.
Also consider the beneficiary designations you've made on your life insurance policies and RRSPs. If you bought those items during your previous marriage, they probably designate your ex-spouse as the beneficiary. Perhaps that's what you still want, or what you are obligated to do as a result of your divorce settlement. In that case you don't have to change anything.
Most people, however, want to update their beneficiary designations to name their current spouse or perhaps the children. Do not assume that your divorce decree or your separation agreement changes those designations, because they do not. In some cases (a minority) the divorce or separation paperwork will specifically refer to a certain policy or account and talk about how it's to be dealt with; most do not. The generic wording of releasing all claims against the other's estate does NOT change beneficiary designations. You'll have to do that yourself if you want to change it.
Guardianship of minor children can also be an issue. You may have two sets of minor children who will likely have two different guardians. When you pass away, the children's other biological parent automatically has a right to custody, so you have to word any guardianship appointments for the children of your first marriage properly. I talked more about this in a post here.
For some people, leaving money in trust for the children of a previous marriage is an issue because they don't want their ex-spouse to have access to that money.
Finally, think about how the Dower Act might affect you. Most provinces in Canada have abolished the Dower Act but it's still in effect (for now, at least) in Alberta. This law gives a married (but not common law) spouse a right to live in the matrimonial home until he or she dies, moves out permanently or signs away that right. This can cause complications for someone with a current spouse who is trying to pass on property to children of a previous marriage.
If you are in, or soon to be in, a second (or subsequent) marriage, I strongly urge you to talk to an experienced estate planning lawyer to have an appropriate Will made. It's not a simple document but if properly done it will definitely save money and headaches for the people left behind after you pass away.
Friday, June 25, 2010
What do lawyers charge to make Wills?
Ontario:
fees to do a simple will range from $278 to $510
fees to do a complex will range from $704 to $2,061
fees to do a power of attorney range from $108 to $219
Western Canada:
fees to do a simple will range from $242 to $508
fees to do a complex will range from $538 to $1,520
fees to do a power of attorney range from $124 to $251
Atlantic Canada and Quebec:
fees to do a simple will range from $215 to $642
fees to do a complex will range from $662 to $2,100
fees to do a power of attorney range from $137 to $338
It's also interesting to compare the average cost nationally by the size of the law firm:
simple will by a firm having 1-4 lawyers: average $294
simple will by a firm having 5-25 lawyers: average $413
simple will by a firm having 26+ lawyers: average $489
complex will by a firm having 1-4 lawyers: average $751
complex will by a firm having 5-25 lawyers: average $1,147
complex will by a firm having 26+ lawyers: average $1,520
I still sometimes hear people, who apparently have sticker shock when they are quoted a price by a lawyer, saying things like "I can get a Will from the lawyer down the street for $100". Seriously, the days of $100 Wills are over. You might as well do it yourself as pay the person who charges $100. The real value of a lawyer when preparing your Will is the advice that you get on trusts, taxes and executorship, and the peace of mind that your family is protected.
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