Some quick tips ahead of preparing your Will

We thought it would be useful to give a few tips for anybody contemplating using one of the services offered at LegalWills. We tell people that you can create a Will in around 20 minutes, but there are a few simple things that you can do to make the process smoother.

1. Don’t be intimidated. You are simply describing how you would like your estate to be distributed if you were to pass away. In most cases this is a very simple process and you do not need to have any legal knowledge to be able to use our service.

2. Do not procrastinate. It seems that many people wait for that perfect time in their life to prepare a Will, not realizing that a Will can be updated at any time. It is more important to have a Will in place that may need to be changed  in a few weeks or months rather than wait until that perfect moment when your life isn’t going to change. Things will happen either to you or to somebody included in your Will and there is a very high likelihood that your Will is going to need to be changed at some point in the future. Write the Will now, and update it when something happens in your life.

3. Think about key appointments. There are two important appointments to be made in a Will. Firstly, you will name an Executor (and an alternate Executor if your first choice is unable to serve). This person will have responsibility to carry out the instructions in the Will. We have described in previous articles how important this appointment is, and talked about the skills and characteristics that need to be possessed by your Executor. Secondly, you may also need to name a guardian for any minor children that you have. Again, we have described some of the considerations that you may think about in naming this person, but it is an appointment that should be made after careful thought.

We also recommend that the appointment of Executor and Guardian should not come as a surprise to somebody. You should discuss these appointments ahead of time with your chosen individuals and make sure that they are prepared to take on the roles.

4. Think about the distribution of your property. This is the why most people write their Last Will and Testament, and it is a good idea to think about this ahead of time. The people who have influenced your life, organizations that you may wish to recognize in your Will, family members, friends. And also think about the assets and possessions that make up your estate and consider how they should best be distributed. Remember of course that the Will can be updated, so if a person or organization makes a profound impression on your life, you can always update your Will to reflect this.

After you have prepared your Will you can add an inventory of assets that can be stored with your Will. At LegalWills.ca, LegalWills.co.uk and USLegalWills.com we have a document specifically to assist your Executor that should be stored with your Will. It helps you to list your personal details and assets including important contact numbers and financial account information. This information typically should not appear in the Will itself as this would require a new Will to be signed and witnessed every time a bank account was changed, but it is an important document that should be stored with the Will.

Once you are clear on the key appointments and the distribution of your property, you are in a great position to start preparing your Will. There is really no need to postpone the task and you really can have your legal Last Will and Testament in your hands in 20 minutes. There is certainly no need to feel intimidated; it is your document, expressing your wishes.

Same-sex marriage and the Last Will and Testament

Last week, the State of New York passed same-sex marriage legislation; from July 24th 2011, same-sex couples will enjoy the same rights as those in Connecticut, Iowa, Massachusetts, New Hampshire and Vermont. In Canada, all Provinces and Territories recognize same-sex marriage under the 2005 Civil Marriage Act which defines marriage as “”the lawful union of two persons to the exclusion of all others”. In the UK same-sex couples can be joined in a “Civil union” or “registered partnership”.

Why is this of interest to the legalwills blog? well, the most significant implication is for those who choose not to write a Will. There were many cases in the past of a person dying intestate (without a Will) having lived for decades with a life partner. The law used to say that only married partners could have a claim on the estate, and until recently, same-sex couples had no claim (common-law partners still have no claim in most jurisdictions). The “civil union” in the UK and other same-sex marriage legislation gives rights to survivors when no Will has been written. Of course, at LegalWills we would have just advised everybody to write a Will in 30 minutes and save their surviving partner the anguish, but sadly, in many cases people procrastinate when it comes to putting their estate planning affairs in order.

But same-sex marriage legislation also provides some rights for partners who have been left out of a Will. In most jurisdictions it is not possible to completely disinherit one’s spouse, and this now extends to same-sex relationships where applicable.

There are also clear implications for same-sex couples with children. In a Last Will and Testament a guardian for the care of minor children is named, but this only comes into effect when both parents are unable to provide care. With same-sex marriage the parental rights can now extend to both parents.

The recognition of civil unions also has implications for Powers of Attorney and Living Will forms – if you are ever unable to speak for yourself, for example, if you were in a coma. One’s married partner is usually the first point of contact for physicians who need to consult with a family member on important healthcare decisions.

The law is still quite varied across different jurisdictions and the discussion is probably worthy of a Masters thesis rather than a blog post. However, many basic rules still apply for same-sex couples;

  1. Make sure that you have a Will, Power of Attorney and Living Will in place.
  2. If you planning to disinherit your married partner; seek legal advice as the wishes that you have outlined in your Will may not be enforceable.
  3. If you do get married or divorced, make sure that you update all of your estate planning documents. Marriage typically revokes (cancels) any existing Will.

This is a very rapidly changing legal landscape, and so if you read this in a few months, it may be out of date. If you have any comments to add, please feel free. I am happy to provide any clarifications or corrections.

A Guardian for a child…

In almost all of our blog posts we explain why everybody should have a Last Will and Testament, but for parents it is extremely important and for single parents, even more so. A Will allows parents (or a sole parent) to state a preference for who they would like to raise their children if they die (including if for example both parents are involved in a common accident). It usually also allows the parent to explain the reasons why this person is their preferred choice.

If both parents are involved in a common accident, or a single parent has sole custody of a child and then dies, one of three things will happen if there is no Guardian named in a Will;

  • Somebody will come forward and offer to look after the child or children. This person will then have to apply to the courts for formal custody and they will be legally granted custody.
  • More than one person will come forward and there will be a dispute over who is the most suitable and the family courts will decide based on the best interests of the child.
  • Nobody will come forward in which case the child or children will become “children in need of protection” and will be put in the care of the child services agency

If a Guardian is named in a Will most jurisdictions will grant custody to this person. If other friends or family members dispute this selection the process varies by jurisdiction but usually preference is given to the person named in the Will. In some jurisdictions the “Guardian by Will”  has to be shown to be unfit before the judge will grant the guardianship to another person.

So what factors should go into making this decision? here are a few, but they are subjective and the decision is ultimately a very personal one;

Friend or family member? It would seem that by default, all things being equal, a family member would be preferred over a friend, but the other factors below may make a friend a more suitable choice.

Geographic location? – you would have to decide if it appropriate to move the children across the country or even around the World. A decision that may seem suitable for a young child may not be the right decision for a teenager.

Age? – Both the age of the Guardians and also the age of the children. It probably doesn’t make sense to name grandparents as the Guardian of a two-year old when that responsibility will last another fifteen or sixteen years, but perhaps they may be suitable Guardians of a sixteen year old.

Children of their own? – Is it more appropriate to name a Guardian who already has one or two children of their own, or is this too much of an additional burden. Many families have reached a balance and introducing one or two additional children may add to much strain to the family. Even practicalities of sleeping arrangements may be logistically very difficult. On the other hand, if a happy couple have decided not to have children, it may severely cramp their lifestyle to introduce a toddler into their care.

Financial means? – There is a good chance that a trust will be set up for the children that can be drawn upon by the Guardians, and this would help pay for education and health care. But there still may be a financial burden imposed on the Guardians for the care of the children. The financial means of the Guardians may be an influencing factor.

Values? – Of course, the religious, spiritual, and general lifestyle values are critical in selecting a Guardian. This is also a factor that changes in weight depending on the age of the child.

Emotional ties? – One of the most important factors is that you want the child to join a loving home and hopefully a stable family environment. The guardians should have an emotional investment in the well-being of the children. There are many stories of family members being chosen ahead of friends, but the family members not even particularly liking the children. You then end up with the type of family environment described by Lemony Snickett and the Brothers Grimm.

Keeping the children together? – If you have more than one child, you would have the option of naming a different Guardian for each child. It is an extremely difficult decision but one that needs careful consideration.

As we noted in a previous post, if you have included the name of a preferred guardian in your Will, then this can be submitted to the family courts and will be a crucial piece of information for the judge to ponder when the guardianship is granted. Of course, remember that you should also discuss guardianship with the individual or family that you have named before finalizing your Will. It should not come as a shock to them and you must know that they are willing to take on the role. Just by including your preference in your Will, they are not legally bound to accept the responsibility.

It is also important to note that these factors do change in importance as the children grow and as the circumstances of friends and family change. You may have named your sister as the Guardian, who then has triplets, or who starts to have family difficulties of her own. At any point, your preferred Guardian may no longer be the most suitable person and this is one of the key reasons for a regular review and update of your Will.

People are sometimes reluctant to review their Will on a regular basis, but if you have a Guardian named in the Will it is worth spending a few minutes each year making sure this person is still suitable. Of course, at LegalWills this can be done quickly and easily by just logging into your account, making a change and printing a new document. But even if you’ve chosen to create a Will with a lawyer, you should review your choice of Guardian regularly.

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Who Will Be the Guardian of Your Children?

There is a lot to organize when you have a new baby; the sleeping patterns, the feeding, the crying and the soothing. However, amidst all of this, there is paperwork to complete and file. Usually, new parents are given help with the basics such as registering the birth, and applying for a Social Insurance Number or health card. But one of the most important documents that needs to be written and is often overlooked is a new Last Will and Testament for the parents. Most people think of a Last Will and Testament as a document for describing the distribution of their possessions after they have passed away, and this is indeed one of the most important elements of this very important piece of paper. But for new parents, often the most challenging clause is the one that names the guardian of their children.

What happens if you do not have a Will?

If something were to happen to you as a parent, the other parent will in almost all cases be given the parental responsibilities for your child or children. But if something were to happen to the two of you, then things can become very complicated. It is not likely to happen, but it just might.  Imagine for a moment that your child is with a caregiver and you and your spouse are running some errands. There is always a possibility that something could happen to you at that moment and, although the thought is horrific, it is best to prepare and give some thought to who would be the best person to take over guardianship of your child.
Without a Will, friends and family members will apply to the family courts and a judge ultimately decides who will be the most appropriate guardian for your children. They will not personally know any of the applicants and will only be able to consider things like age, financial means, type of relationship, or geographic location. They will not be able to consider less tangible aspects such as values, personality, and general priorities in life. The battle in the family courts can be an ugly one, but ultimately, you will have absolutely no say in the matter if you do not have a valid Last Will and Testament.

What happens if you have a Will?

If you have a Will there will be a clause naming your choice for the guardian of your children and in some cases you can describe why you have chosen this person. Your choice may be a difficult one. Do you want your child to have to move to a different geographic location, to a different town or different country? Do you want your child to live with family members, or with the best qualified friend? What makes one person more qualified than another; their financial means or their values? What about a prospective guardian’s religious or spiritual beliefs? Is it more appropriate to ask somebody who already has children or somebody without children?
It can be a very difficult decision, especially as the role of guardian is likely to last until the child becomes an adult; 18 or 19 years old depending on where you live.
But if you have included your preference in your Will, then this can be submitted to the family courts and will be a crucial piece of information for the judge to ponder when the guardianship is granted. Of course, remember that you should also discuss guardianship with the individual or family that you have named before finalizing your Will. It should not come as a shock to them and you must know that they are willing to take on the role. Just by including your preference in your Will, they are not legally bound to accept the responsibility.

But isn’t it a pain to write my Will?

It can be, but it does not have to be. Basically, you have three options:
You can see a lawyer, who will be able to give you professional legal advice. This will cost anything from about $200 to well over $1,000, but it does mean booking an appointment and heading to a lawyer’s office. You are likely to receive top quality service, but it can be inconvenient and expensive to update and maintain your Will if you change your mind about something. If you have a young baby, it may be a lot to ask to organize and make a trip to a law office.
At the other end of the spectrum are the blank Will kit forms that you can buy in stationery stores. These are the cheapest, but have been largely criticized by many observers as they are simply a blank form and you are supposed to figure out how to complete the Will yourself. Although you are legally allowed to do this, writing your own Will is generally a bad idea. You may have Minor Trusts to set up, alternate plans, residual beneficiaries, and other items that are obvious to a legal professional but not to a layperson. The biggest issue is that you will never know that you have made a mistake; it will have to be dealt with by your survivors. A mistake in the signing procedure, for example, can invalidate every aspect of the Will, and you will be none the wiser.

A middle ground worth considering is an online tool, somewhat analogous to tax preparation software. Such tools guide you through the process of creating your Will by asking you a series of questions about your family situation and your wishes for distributing your assets. They will also check that you have included things like guardians for your children. The added advantage of these systems is that you can complete your Will at home, at your convenience, and then update your document at any time in the future when your circumstances change. Each time a change is made, you simply print off the new version and sign it in the presence of two witnesses to create your new legal Last Will and Testament customized for your location and personalized to your situation. At a fraction of the cost of hiring a lawyer, you can have your Will in your hands in 30 minutes or less and this will include the critical step of naming a guardian for your children.