Of all the areas of law I practice, it is Will drafting that most often gets put on the back burner by clients. I have waited years for some clients to get me the information I require to begin drafting their Wills. Why? Because drafting a Will causes feelings to surface that understandably people are not comfortable with. We all want to think of ourselves as young, vibrant, and sometimes immortal. Thinking of the day we pass is surreal, and so people put their Wills off for another time. Don’t make this mistake. Life is uncertain. Have your Will drafted now, and then you won’t have to think about it again. It won’t be this nagging thing on your “to do list”, and you can be confident that your affairs are in order.
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1. DECIDE WHO YOUR CHILDREN’S GUARDIAN WILL BE
Even with a properly drafted Will, in Ontario your named Guardian(s) must apply to a court of competent jurisdiction to be awarded guardianship of your children. This gives other family members, friends, or other people with important information an opportunity to challenge your decision as to who will be your children’s guardian. That being said, the Court will give great weight to the person(s) you have chosen, and unless there is overwhelming evidence that the person(s) you have chosen would be a harm to your children, they are most likely to grant Guardianship to the people you have named in your Will. Now can you imagine not having a Will at all? Without a Will you have absolutely no say on who will care for and raise your children. In a perfect world we would all hope that our family would get along, and make a decision that they know you would want. But in reality, without having expressed your wishes, families are more prone to fight. In-laws and aunts and uncles all may feel right for the job. Don’t leave the care of your children up to chance, and possibly create a hostile family environment in which your children will have to live. Make it clear in your Will.
2. DECIDE WHO WILL GET YOUR PROPERTY
Not everyone will have children or a spouse when they pass away, which leaves the question of where your property goes unanswered. If you haven’t answered this question with a property drafted Will, it will be the Government who decides who gets what. Depending on what living family you have at the time of your death, your property could pass as far as distant cousins, maybe even someone you’ve never met. Remember, you spent your whole life working for what you have – you should make the decision who will benefit from your hard work. Family, friends, or charities – whoever it is, will miss out if you don’t make it clear in a Will.
3. DECIDE ON THE WAY YOUR FAMILY RECEIVES YOUR PROPERTY; PROTECT YOUR CHILDREN
I have heard countless times from friends and clients that they are “just buying a Will Kit” rather than having a lawyer draft their Will. In no uncertain terms, this is a mistake. A Will Kit is general to a fault, and leaves you no ability to decide on the way in which your family and friends will receive your property. An important example of this is the property that will pass to your children when you die. Once your child has reached the age of 18, the money and property you’ve passed on in your Will is theirs – there will be no guardian to help them manage it, and no guidelines for the way in which they can spend it. Think about this for a minute. Can you image entrusting an 18 year old child with potentially hundreds of thousands of dollars? The chances that they would deal with this money responsibly are very slim. By having a lawyer properly draft your Will, you can create Trusts that will protect the money in your estate for your children’s future. You can specify who you want to control the trust on behalf of your children, at what age you want them to receive the money, and any special instructions (ie: allow my child to buy a car at age 16). Without the knowledge and expertise a lawyer brings to the planning of your estate, you could allow your children to squander your life’s savings, leaving nothing for their futures.
4. AVOID CONFLICT AND BURDEN ON YOUR SURVIVORS
Without a Will, or even with a poorly drafted Will, your wishes may be unclear or unknown to your family and friends. The more unclear you are, or if you have neglected to leave your wishes at all, the more potential for family conflict there is. Everyone knows the stress and sadness that comes from the passing of a loved one. Even though it may be hard to imagine, that will be our families grieving for us one day. Alleviate one of the burdens by making your wishes perfectly clear, in a well drafted Will that is easily executed after your passing. Even if the passing of your property is not your primary concern, consider these other decisions to be made that you may want a say in: a) who will be your executor, and administer your Will, b) funeral arrangements – you may have special instructions like cremation, and c) who will be the guardians of your children. These are but a few examples.
5. REDUCE OR ELIMINATE TAXES
Simply put, without the tax planning that a Lawyer can provide, you may be giving money away to the Government upon your death. Seek legal counsel to ensure that you are taking advantage of every tax break possible, and preserving this money for your family.
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