What You Need to Know When Drafting a Will
In our last post, we discussed factors to consider when choosing an Estate Trustee. In today’s article, we will discuss the basic parts of a Will.
PLEASE NOTE: This article is for general information only and is not to be construed as legal advice. Please contact the author / Boardwalk LLP for a consultation if you would like to get legal advice on your personal circumstances.
Our firm is happy to help you create a Will or make changes to your existing Will.
Key Information for a Well Crafted Will
Describe the contents of your Estate
Your “Estate” is everything you own at the time of your death, and includes:
• Real Property: Houses, land, or any other real estate.
• Money: Bank accounts, cash, investments.
• Debts: Money you owe creditors, loans, mortgages, credit cards.
• Physical possessions: Cars, jewelry, furniture, contents of safety deposit boxes.
• Business assets: Shares in non-publicly traded corporation, intellectual property such as patents, trademarks, and copyrights.
Appointment of an Estate Trustee
An Estate Trustee is the person that will be responsible for managing your estate, including preparing paperwork, paying taxes, and distributing your assets.
This person is commonly referred to as the “Executor”, however, in Ontario, the correct legal term for this role is “Estate Trustee”. See our last blog post, “How should I choose my Estate Trustee (Executor)?”, for factors you should consider when choosing an Estate Trustee.
You may also want you appoint a subsitute Estate Trustee, if something happens to your first choice. Your subtitute Estate Trustee would take over this role if your first choice dies before you or is not able to act.
Appointing Beneficiaries
Beneficiaries are the people you name in your Will that will inherit your assets. You can also name substitute Beneficiaries if the first choice dies before you. Example: “In the event that my daughter dies before inheriting, her share will instead go to her children.”
If you have Dependents, such as your spouse, minor children, or other people who are financially dependent on you, you should include them as beneficiaries to your Will. If a dependent has been excluded from your Will or they were not adequately provided for in the Will, they might apply to the court for “dependent’s support”. This could delay the administration of your estate and potentially cause family strife.
Naming Guardians for Children
If you have any minor children (under 18), you should name Guardians for children. The Guardians would be responsible for any minor children if both you and the other parent die before the children turn 18. You should speak to the Guardian in advance to make certain he or she is prepared to accept this responsibility.
The Guardian named in your Will is not automatically awarded custody of your children when you and the other parent die. By naming a Guardian in the Will, you are recommending who you wish to have custody. That person must still make a formal application to the court for custody, though your recommendation will be given significant weight. The court decides who will ultimately have custody, care and control of your minor children, and they will decide based on the best interests of the children.
Residue of Estate
The “residue” of your estate is what is left in your estate after all debts, taxes and expenses have been paid. Your Will should explain how the residue of your estate will be divided amongst your beneficiaries. You can give the residue of your estate to one person (e.g., “everything to my spouse”), or it can be divided into any number of shares (e.g., “residue will be divided in equal shares between my spouse and daughter”).
What’s Should I Do Next?
If you are ready to get your Will prepared, please contact Gordon Duy The Vuong, Associate Lawyer at Boardwalk Law to learn more: [email protected] / 905.798.6731.
Gordon’s 5-Part Wills + Estates Series
Thank you for taking the time to read this post.
If you enjoyed this article, please stay tuned to Boardwalk Law’s blog and updates. In the coming weeks, Gordon will address the following related topics:
- Do I need a Will?
- How to Choose a Power of Attorney?
- When should I change my Will?
