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Wills and Estate Planning |
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Seniors Choice January 2005
What should you expect during your first meeting with a lawyer to discuss making your will? What information do you need to bring in to the meeting? The answer depends in part on the lawyer. Different lawyers have different styles and approaches. This article reflects the writer's experience and opinion of good legal practice.
You may come to see a lawyer with a very clear idea of what you want in your will, or only the most general idea of whom you wish to name as beneficiaries. In either case, your lawyer should ask you detailed questions about what assets you own, what debts you have, and who are your nearest relatives. Is anyone else's name on the title to your real estate or your bank accounts? Do you have life insurance, and if so who is the beneficiary or beneficiaries? Have you named a beneficiary of your RRSP, RRIF or pension plan? If you are in business, do you have a partnership or shareholder's agreement?
Questions about your family are also important. Where do your children live? How old are they? What kind of work do they do? Are they married? Do they have children? Does anyone in your family have a disability?
You may wonder why a lawyer whom you may have met recently is asking you all of these personal questions. The main reason is that it is the lawyer's job and professional responsibility to make sure that you are well advised before you make your Will. This is true even if you are sure about who your beneficiaries are going to be. For example, you may know that you want to leave everything to your two children. But there may be different ways of accomplishing this. In some circumstances there may be tax advantages to creating a trust for your children and their families in your will, instead of leaving it to them outright. Or you may create a trust because of concerns about a child's marriage, or the child's financial stability. A substantial amount of your wealth at death may be the proceeds of your life insurance policy, and it may make sense to do a life insurance designation that parallels your Will. An experienced lawyer may advise you of alternative ways of arranging your affairs to accomplish your estate planning goals.
Think of your lawyer as a travel agent. You may know where you want to go for your vacation, and your travel agent can suggest different ways of getting there. Your travel agent may also suggest other destinations for you to consider. After you have weighed the options you can best plan your vacation. (This is a particularly apt metaphor because many people do their wills just before they go away on vacation).
A second reason that it is a lawyer's responsibility to get detailed information about his or her client before drawing a Will, is that if the Will is ever challenged in court, the lawyer may be called upon to testify about his or her client's competence to make a Will. If the lawyer has asked the client detailed questions about his or her circumstances, and the client gives rational and accurate answers, the lawyer's evidence will go a long way to establishing that the client was competent to make a Will. If the lawyer has not questioned the client sufficiently to establish the client's competence, the Will may fail to be upheld and the client's wishes thwarted. Very few Wills are challenged in this way, but it can and does happen.
During your lifetime, your lawyer has an obligation to keep the information you provide to him or her in the strictest confidence, and may only disclose matters with your consent. After your death, your lawyer must continue to keep the information you provide confidential, with very few exceptions, such as where the lawyer is required to disclose information bearing on the validity of the Will if it is challenged.
When you see a lawyer to make your Will, it will be helpful and save time (and money) if you bring with you the following information where applicable:
1. The names and addresses of all of your close relatives, and anyone else whom you are considering making a beneficiary of your Will;
2. If you are considering naming a charity as a beneficiary, a document, such as letterhead, or a tax receipt, which clearly identifies the charity;
3. The name and address of anyone whom you are considering naming as an executor, or alternate executor;
4. The name and address of anyone whom you are considering naming as a guardian or alternate guardian of minor children;
5. A copy of a title or title search of any real estate you own, and a copy of a recent tax assessment notice concerning the property;
6. A copy of any life insurance policies you own, including beneficiary designations;
7. A list of your valuable assets, including mutual funds, segregated funds, bank accounts, shares, registered retirement savings plans, registered retirement income funds, and other securities, and documents helping to identify such assets;
8. A copy of any separation agreement or court order that may affect your estate;
9. A copy of any shareholder agreement or partnership agreements; and
10. A copy of your last Will. |
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