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A Will is a legal document that outlines how you would like your assets distributed after death. The “testator” refers to the individual creating the Will.
A Will is important to have because it:
- allows you to pick your executor
- allows you to control how your assets are distributed upon death and choose who will handle them
- allows you to decide who will receive your assets according to your wishes
- allows you to designate guardians for your minor children
- allows you to make a gift to charity upon death
- can avoid family disputes and litigation
- can reduce or defer taxes
There are several variations of the basic Will. Let’s discuss.
MULTIPLE WILLS
Creating more than one Will has been a popular strategy to allow testators to minimize estate administration tax and simplify the estate administration process. Typically, this strategy involves the creation of two Wills: A Primary Will and a Secondary Will.
The primary purpose of creating two separate Wills is to separate those assets requiring probate from those that do not. Assets that require probate are dealt with in the primary Will and probate fees only have to be paid on the value of those assets. The assets referred to in the secondary Will can be handled without being probated.
It is important to seek legal advice if you wish to draft multiple Wills to ensure that the Wills are properly prepared and your estate collectively planned suit. A qualified lawyer will ensure that your Wills are carefully drafted to ensure each Will refers to the other properly, in that they do not revoke each other.
MUTUAL WILLS
Mutual Wills refer to a pair of Wills made individually by partners in a couple based on mutual agreement on the contents of the Will. Typically, both Wills for each partner in a couple mirror one another so that the couple’s joint intentions are consistent across both Wills.
- Reciprocal Provisions: In mutual Wills, the parties mutually agree (via a mutual Will agreement) to make certain provisions in their mirroring Wills that are binding to each other and that cannot be changed after one party in the couple dies.
- Joint Intentions: Mutual Wills are made to have joint intentions of a couple consistent across two Wills. Each party is to agree on the terms of their respective Wills and make an agreement to not revoke or alter the terms of their respective Wills without the consent of the other party.
- Binding Nature: if one party to a mutual Will dies, the surviving party is bound by the terms of the mutual Will and cannot make changes that go against the agreed-upon provisions.
LIVING WILLS
A living Will (also referred to as a “health care advance directive”) is a written statement about your health care wishes in a situation where you become incapacitated and are unable to communicate these wishes to your family and the medical team. Although a living Will is not legally binding like a regular Will, your healthcare providers and substitute decision-makers (such as an attorney under a Power of Attorney for Personal Care) are expected to consider your known expressed wishes when making decisions on your behalf.
In this Will, you can express your health care wishes in greater depth than in a regular Will and Power of Attorney of Personal Care. You can include directives about life-sustaining treatments such as resuscitation, mechanical ventilation, artificial nutrition and hydration, and other medical interventions. You may express that your life should not be prolonged where there is unbearable suffering. You may approve, refuse, or express preference for certain medications and treatments.
ETHICAL WILL
An Ethical Will (also known as a legacy letter) is a document that allows you to communicate your personal values, beliefs, wisdom, and final wishes to your family and their future after your passing. This may contain a record of your cherished memories or greatest accomplishments such as moments from childhood, university, marriage, parenthood, career, and travel. This Will might also contain requests for forgiveness/expressions of gratitude whether individualized for specific family members or something more general.
Choosing when to share your ethical Will is a highly personal decision and there are no set rules. You may want to share it at a special moment in the recipient’s life, or you can alternatively preserve it to be given to your loved ones after your passing. An ethical will allows you to share information of a more personal, spiritual, and philosophical nature, which is something formal estate planning documents often lack.
We at Sweatman have the experience to help you create any Will suitable to your needs and wishes. Contact us today!
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DISCLAIMER: This blog post should not be interpreted as legal advice for your specific situation, concerns, or challenges. All estate plans are unique and should be reviewed by legal, financial, and health professionals, and tax accountants. Please be advised that the information on this website relates to laws specific to Ontario or Canadian federal law. Legal advice, procedure, and legislature may vary in different jurisdictions.
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