3 Basic Questions to Ask When Making A Will

In a very practical way, your will is your last word on Earth. It is a final chance to make a statement and shape your legacy. Your will can help you protect your children, support causes close to your heart, keep precious heirlooms in the family or leave a final gift to friends and loved ones. When drafting your will, you want to get it right and a good lawyer will help guide you through this process to ensure your final wishes are remembered. Here are a few of the questions I ask my clients to help draft a will that protects their wishes.

1) What do you own?

Before my client is in the office, I ask them to fill out a form listing their assets and liabilities, and how their assets are held. You may think you have a good sense of what you own, but details are important. For example, if you and your spouse own a home, do you own it as joint tenants or tenants in common? Are your investments jointly owned with your spouse or do you own those outright? You do not need an accounting of your assets down to the penny to plan your estate, but you do need a record of what you own and where your assets are located. This information will help you plan your estate and help your future executor find your assets when you die.

I also ask clients to note any “notable possessions”. These possessions could be anything from a favorite watch, family heirlooms or even something as simple as a baking dish that you know your grandchild would love to have. Also consider what items your family may fight over. Laying out what you have and who will get what may help prevent conflict.

2) Who do you want to implement your estate plan?

One of the most important decisions a will maker can make is assigning an executor of the will. The executor has two responsibilities; they distribute the assets of the estate and they plan the funeral. Therefore, a competent executor is crucial to ensure the will is carried out properly.

An important rule to note is that executors do not have to follow any funeral instructions left behind in the will. The only rule is that the costs of the funeral must be reasonable. Therefore, I advise clients to choose an executor who will respect their wishes. Buying funeral plots in advance or making other arrangements while you are alive can help make funeral planning easier and help ensure your wishes are implemented.

3) If one or more of your heirs die before you, what do you want to do with their portion of your estate?

Most people keep the same will for years. While I encourage clients to review their will often and contact me with their desired changes, I appreciate that many people will not update their estate plan. Knowing that you may not update your will makes it important to account for as much uncertainty as possible. One way to ensure your will reflects your wishes is to account for the possibility of the individuals named in the will predeceasing you.

An example of this sort of planning is, if you have three kids who will each inherit an equal portion of the estate, ask yourself what you want to do if one of your children predeceases you. Would you want your daughter-in-law and grandchildren to inherit what your child would have gotten or would you want your two surviving children to receive the deceased sibling’s share of the estate? I encourage clients to continue this “chain of succession” as far as possible to avoid intestate succession. For example, you could say that the estate goes first to your kids, then to your siblings, then to your nieces and nephews and if they all predecease you, the estate goes to the Red Cross. It may be hard to consider your loved ones predeceasing you, but forethought today can help prevent intestate succession or estate litigation after you die.

These three questions can help you get started on thinking through your estate plan. However, they are not exhaustive. An estate plan involves many moving parts and it should be thought through carefully. If you would like to learn more about how you can plan your estate, send us an email at info@law365.ca.