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Should new parents create a will?

child guardian wills Aug 28, 2019

While having a Will ensures that your assets will be distributed according to your wishes when you die, it also ensures that your children will be cared for by someone you trust.

Thinking about who to appoint as the guardian of your children can be difficult and heartbreaking, but it is an important thought to have. By naming a guardian in your Will, you will have peace of mind in knowing that your children will be looked after by someone who loves them, by someone who wants them, and by someone who can care for them. You do not want your family to deal with a traumatic and costly custody dispute, arguing over who is best fit to act as guardian or over who they think you would have appointed.

From a legal standpoint, your Will is not the only document that you should consider creating. We also suggest creating a Personal Directive and Power of Attorney. Your Personal Directive appoints a guardian to care for your children in the event that you lose mental capacity (it also...

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You Can't Give What you Ain't Got

wills Jul 31, 2019

We are constantly discussing the types of gifts people want to leave behind in their wills – and a lot of the time, people try to give away more than they actually have. These clients typically attend our office with a long list of who gets what. Once we examine their assets, determine the value of funds that will flow outside of their estate, and estimate how much tax will need to be paid upon their death, we sometimes discover that the number of gifts exceeds the value of their estate.

Monetary gifts (otherwise known as ‘legacies’) are easy for an executor to calculate. Consider this example: Jane has an $800,000.00 estate, wants to leave a $100,000.00 to each of her four children, and wishes that the residue of her estate be distributed to her spouse. Jane’s executor can easily determine the value of the residue after debts have been paid and legacies have been gifted. But, what if Jane’s estate value decreases upon her death? Unfortunately, life...

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Codicil vs. New Will: What should I do?

codicil wills Jul 24, 2019

Many people contact our office and want to make a small change to their wills. For some clients, it may be that their executor has died, or maybe their child is now old enough to become the executor. Whatever the change and reason for the change, we are often asked if the change should be done by Codicil or a will-re-write.

A codicil is a document separate from the original and apart from the will that makes an addition or a change to the will. In our office we try to avoid creating codicils to wills. So, the original will can be read along with the codicil which amends the original will. The executor and the beneficiaries will know what your original document said as well as what the change was. For example, if your original will had been written that you wanted your cousin, Jack to be the executor, and then you subsequently signed a codicil that revoked Jacks appointment and instead appointed your cousin Molly. Both Molly and Jack would know about this change. While no one would...

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Different Wills for Different Jurisdictions

wills Jul 10, 2019

Our clients are increasingly mobile and often have connections to multiple jurisdictions. They may own a house in Palm Springs, have bank accounts in the UK, a cottage in Croatia, or a business in Spain.

Our office once dealt with and estate where a husband and wife had been married for several years. They had three lovely children, and owned a successful business in Edmonton. When the husband passed, everything rolled over to his wife...BUT the condo in Hawaii! We had to take the Canadian will and have the Hawaiian courts reseal the grant of probate so that the condo could be sold. In Alberta this would have cost about $7000.00 Canadian. The courts in the US didn't seem to like the Canadian probate process  and it took 10 months and $13,000.00 to have the will recognized in Hawaii.

If you or your loved ones own property in other countries, how should you be handling this in your will? In Alberta, the will is governed by the law of where the client was living for property...

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Why Joint Ownership on Vehicles Can Be a Good Thing

wills Mar 27, 2019

We recently had a client call our office looking for help. The client stated that her husband had passed away 3 months ago and did not have a Will. She was calling because they owned some collector vehicles that had a considerable value, and when she went to transfer the insurance into her name, the insurance company refused to do so because she was not the registered owner of the vehicle. When she contacted the local Registry Agent, she was told that the only way they would complete the transfer is with a death certificate and a copy of the Will.  In the alternative, she was told a letter from a lawyer stating that she was the rightful beneficiary would suffice. Our office had never met her or her spouse, so we were unable to provide this letter and would have had to move forward with a Grant of Administration application. All this stress on the spouse could have been avoided if her spouse had written a Will, or alternatively, made sure the vehicles were registered in joint...

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Holograph Wills

wills Jan 02, 2019

If your parent has written down their wishes and it is entirely in their own writing, we will treat it as a holograph Will.

A holograph Will is a Will that is in the testators writing with no other written words on the document.

One of the most famous holograph Wills is actually found at the University of Saskatchewan. In that Will, a farmer was out farming, cut off his arm and bled to death. He wrote his Will on the fender of a tractor saying ‘I leave everything to my loving wife,’ and that fender was cut off and probated in court.

So, a holograph Will will suffice; it isn’t the best solution, but it’s definitely better than a Will kit.

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Writing a Memorandum

estate planning wills Oct 17, 2018

Writing your Memorandum

  • Describe the item in enough detail so that it cannot be confused with another item;
  • Identify the recipient by name and if necessary, relationship so that there can be no confusion;
  • Date and sign the Memorandum;
  • Store the dated, signed Memorandum with your signed Will;
  • Let your Executor know that there is a Memorandum.

Changing Your Memorandum

Edits made on a Memorandum, even if initialed and dated, may be questioned regarding authenticity.  If you wish to make a change to a gift, it is recommended that you print a new template and rewrite the Memorandum.

Ensure that you physically remove old copies of the Memorandum when you store the updated memorandum with your Will.

It is true that “non-binding” means that your Executor can use his or her discretion with respect to adherence to the wishes you stated in your Memorandum, but you should have confidence that your Executor will follow your wishes as closely as possible, using discretion...

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Personalize Your Legacy

estate planning wills Oct 10, 2018

Some of the most meaningful Wills are those that include messages to family members. These Wills provide a message that can be delivered from beyond the grave.

One of my personal favourite Wills was a Will that was written by a wonderful elderly school teacher who had a close group of friends that got together every week for a cup of earl grey tea and fresh biscuits. Over the course of her life she had collected and been given many beautiful tea pots. Upon her death, her Executor had an elaborate tea party for all her family and friends at the Rutherford House. During the tea party, the Executor gave each of the friends a specific bequest that they had been left in the Will. Each friend received a special teapot. This memorable tea party created a meaningful way for the family and friends to celebrate the life of a great teetotaller.

Another one of my favorite Wills involved one of our clients that had a 5 foot, (yes that is feet not inches) potato peeler. It had been a running joke...

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Should I use a DIY Will Kit?

wills Oct 03, 2018

A do-it-yourself (DIY) legal Will kit that is correctly filled out can save you about $500 and take care of your assets after you die – but are these Will kits a good idea?

In order for a form or document, like a Will, to be truly effective and to stand up in court if challenged, it must be filled out and executed (signed) correctly. Most people do not know or understand the legalese on the forms and make guesses, which can invalidate the document; in our experience, most people mishandle the execution page(s).

Two valid witnesses are required to properly execute a Will, and the testator/testatrix (the man/woman creating the Will) and the witnesses must sign the Will in the presence of each other. The witnesses should not be the beneficiaries or the spouse of a testator/testatrix, or the gifts named for that person in the Will become invalidated. Depending on how the Will is structured, initials may be required on every page.

You may have heard of cases where a handwritten...

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Reasons NOT To Use a Will Kit

wills Sep 26, 2018

Often times, Wills don't get the attention they should and frequently end up being little more than an add-on service provided by a lawyer when you purchase a new home, or a 'do it yourself' document.

Here are 4 common mistakes that our office sees quite often:

Leaving too much money to kids too early...

If you and your spouse die simultaneously and you add up all your assets, like the value of your house, life insurance, investments, and pension benefits, your estate may be quite large. You do not want to leave your child half a million dollars when they are 21 years old. Think about staging the ages and amounts that your children will receive.

Not understanding what assets your Will covers...

Many assets, like TFSAs, RRSPs, pensions and insurance policies may have direct beneficiaries. These beneficiary designations will generally trump your Will and these assets may end up being passed outside your estate. This may mean that your children will inherit large amounts money on their...

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