I Just Want a Simple Will

People frequently come to us and say,

I just want a simple will”.

They then inform us of their circumstances and intentions. In a great many cases, there are several elements that cry out for estate planning that goes beyond a “simple will”.

For blended families (couples in which one or both has children from a previous relationship) the legal landscape can be particularly treacherous and requires careful discussion and planning, a topic we will return to in greater detail in a future post. Similarly, parents with disabled children or children who might not manage a large inheritance prudently if they were to receive it all outright upon turning 19 (i.e. most children) frequently have good cause to engage in planning that falls outside the “simple will” category to protect their children. Individuals who run their own business, or who hold a share or shares in a private corporation or partnership often also find themselves in need of specialized tax and estate planning. These are only a few of the more common examples frequently thought to be simple before sitting down with an estate planning professional.

When a client comes in to talk to a lawyer about “making a will” the lawyer’s job is not to simply take the client’s words, translate them into legalese, and make sure the document is signed and witnessed correctly. As lawyers who draft wills, our duty is to apply our knowledge of the law to the information our clients provide us about their intentions and circumstances.

Getting Started

First, we draw our clients a map of the relevant legal landscape and advise them of the risks and benefits of the methods available to help them traverse that landscape. Then, we assist our clients, often in conjunction with their accountant and other advisors, in developing a plan. These plans are designed to maximize the chances of our clients’ intentions being realized and reduce the chances of their intentions being thwarted or undermined by the applicable laws. Almost always, the legal landscape has a few more pitfalls that require planning than our clients expected when they walked in our door. Almost always, more than “just a simple will” is required to realize their intentions and to do so efficiently.

Implementing the Plan

Once a client has decided on a plan, we help them implement it. This ordinarily involves drafting a will, but often also includes assisting the client with implementing:

• planning intended to avoid probate or minimize probate fees or tax;
• planning to address a risk of wills variation claims;
• planning for the legal implications of gifts, loans, and advances on inheritance made to children (or others) during your lifetime;
• planning involving changes to whose name(s) assets are held in (e.g. putting spouse or children on title to a house, a vehicle, or a bank account);
• planning involving changes to beneficiaries (or successor holders) of beneficiary designateable assets such as: RRSPs, RRIFs, TFSAs, Insurance, Pensions;
• planning that addresses assets that require special planning such as: RESPs, digital assets, transferrable reward points (e.g. Air Miles), interests in businesses, farmland, licences, etc.; and
• planning for gifts to charity.

As a general rule, plans made in the absence of important relevant information are prone to lead to inefficiency, disappointment, and conflict. In the case of estate planning, the burden of that inefficiency, disappointment, and conflict is borne by the loved ones who are left behind. A little planning now can:

• significantly reduce the workload for your executor;
• significantly reduce expenses for your estate;
• significantly reduce the time it takes to distribute your assets after your passing;
• maximize benefits (and minimize drawbacks) for beneficiaries; and
• avoid disappointment and conflict for the loved ones you leave behind.

This is true both for people with relatively straightforward situations (e.g. one marriage, good relationships with all children, no complicated assets) and for people with more complicated situations (e.g. multiple previous spouses, spousal or child support obligations, children from previous relationships, a complicated set of assets).

Getting Peace of Mind

Professional estate planning assistance from a lawyer can cost a bit more than a will put together in the absence of such assistance. The world is awash with plenty of bargain-basement ways to put together a will. That said, getting proper professional estate planning advice tailored to your circumstances is often not that much more expensive.

Additionally, for many people, it is a one-time expense that grants long-term peace of mind. Once a good estate plan is in place, it frequently doesn’t need to be amended unless the person’s circumstances change dramatically. It is not uncommon for us to encounter estate plans that were set up several decades ago that are still efficient and effective today.

If you are interested in some of the estate planning issues that commonly catch people unaware, stay tuned. Next month we will discuss one of the most common situations we see in which more involved estate planning is necessary; we will discuss some of the estate planning challenges faced by blended families.