Wills Lawyers in Ottawa, Ontario
Practice Areas
Changes to a Will
From time to time, it is important to review the document to be sure everything is current. Things that can affect the distribution include:
Marriage, separation, or divorce
Birth of a child or grandchild
Death of an executor, trustee, beneficiary, custodian, or guardian
Significant change in assets
Change of residency or citizenship
There are two ways to change a Will. The first is a Codicil. That is a legal term for an amendment to the Will. If the changes are numerous or complex, it is better to simply execute an entirely new Will.
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Multiple Wills
There is a tax planning strategy often used to reduce the amount of estate administration tax. The Executor must acquire a Certificate of Appointment of an Estate Trustee with a Will (“Certificate of Appointment”) before they can deal with the estate’s assets.
Multiple Wills are used to divide the estate into “good assets” and “bad assets”. The “good” assets include personal property and shares in a private company and these assets are all covered under one Will. The “bad” assets include real property and certain investment accounts. These are included in a separate Will and are those for which a Certificate of Appointment is necessary. So, the estate administration tax is payable only under the Will covered by the Certificate of Appointment, or the “bad assets”.
With that Certificate of Appointment, estate administration tax is payable at the rate of 0.5 percent on the first $50,000 of the value of the estate; and 1.5 percent on the value of the estate in excess of $50,000. This amounts to $7,000 in the case of an estate valued at $500,000 and to $22,000 in the case of an estate valued at $1.5 million.
When considering the use of multiple Wills, you need to consider the costs of additional legal fees to the estate, plus additional administrative fees during the processing of the estate. Be sure to get professional advice from our lawyers at Francis Lawyers and put pencil to paper to see if this strategy is really beneficial in your circumstances. Also realize that if multiple Wills are not written properly, there can be serious consequences not originally intended. Sometimes a portion of the property can be deemed intestate.
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Parts of a Will
The most recent Will prevails, but it is common practice that there is a statement explicitly revoking all previous Wills and Codicils. A Codicil is an amendment to the original Will.
Appointment of Executor and Trustee
The testator names Executors, also referred to as Estate Trustee, and Trustees. The Executor is the person who carries out the terms of the Will. A Trustee is the one who manages any trusts established by the Will. Frequently the Executor and Trustee are the same people, but they don’t have to be. Sometimes they are not people at all, but a company or bank.
Bequests and Devises
A Bequest or a Legacy is a gift set out in the Will. It can be money, jewelry, or any property. Usually, it is given only if the beneficiary is still living. If the beneficiary has died before the Testator, then the bequest becomes part of the whole estate. A Device is a gift of real property (land) and, again, normally it will become a part of the entire estate if the beneficiary.
Predeceased the Testator
Practical advice about bequests is that they be only significant property, usually having a sentimental value. If there are lots of Bequests, there can be much confusion, especially if the particular piece is no longer owned at the time of death. It is better to prepare a Memorandum of Wishes or a Memorandum of Direction. This is a separate document that is stored with the Will that lists all those specific distributions. While it is not binding, it is a guide for the Executor.
Residue
The “residue” is everything that is left after all debts, expenses, taxes and fees are paid and all Bequests have been distributed. The Will names those beneficiaries who are entitled to a share. The shares are usually named in percentages or portions. If for some reason the residue is not specified, it will be distributed according to the Rules of Intestacy.
Guardians of minor children
The Testator may appoint a Custodian for minor children and a Guardian of the child’s property. However, these appointments are only effective for 90 days. The Custodian(s) and Guardian(s) have to apply to the Court for permanent appointment. The Court will consider all the circumstances and will rule in the best interests of the child.
Trusts
A Trust is the legal ownership of property that a Trustee cares for and manages for the beneficiaries. Established under a Will, the testator gives property to a beneficiary but limits how the beneficiary may use the property. Commonly Testamentary Trusts are established for:
Maintenance and education of minors
Maintenance of a spouse during lifetime and then to whom the funds are distributed afterward
Tax planning
Education of children or grandchildren
Property left to young adults or spendthrifts.
As a firm with specialized will and estate lawyers in Ottawa, Francis Lawyers offers legal advice for drafting trusts in your will, and advice on how to manage the trust property.
Contact us and talk to one of our Ottawa lawyers.