Testamentary (upon death)

will in place.

of your having a will. If indeed you do not have a will, we recommend that one be drafted as soon as possible. We can provide assistance in preparing to draft your will utilizing our “Will Planner,” which we will review at an upcoming meeting.

reminded to take this important step.

have a will, but they did not provide a copy for your review.

that you do have a will but we do not have a copy on file. Please provide a copy so that we may do a review to ensure important clauses are included where appropriate.

intimately aware of the client’s intentions and also to potentially introduce you to the next generation.

client’s wills and have found no deficiencies.

reviewed and, based on the information you have provided, we currently foresee no shortfalls in the provisions you have made.

replace the role of a competent lawyer, but merely ensuring that the will appears to include standard clauses and distributes the assets in accordance with what your client has indicated his wishes are. It’s not uncommon for the will to actually say something quite different than what the client thinks it says.

wills and have identified some possible deficiencies.

reviewed and we feel the following items should be discussed and possibly incorporated into your will or added via codicil as appropriate:

replace a competent lawyer, but are looking for obvious clauses that may be missing.

the will as the financial advisor of record can ensure that you are involved in the wrapping up of the client’s estate.

clause in your will directing your trustee to appoint us as the financial advisor to be consulted for continuity in managing the assets of your estate.

knowing as much as you do about the client means you can perform valuable services at this difficult time. Second, you ensure introduction to the next generation through your involvement.

and no guardianship clause is contained in the will.

indication of preference in the event of both parents' deaths. With minor children, the trustee should have discretionary powers in order to permit effective ongoing management and administration of the estate. It is also wise to name a contingent guardian should your first choice be unwilling or unable to act.

the parents would choose are identified as opposed to the court appointing someone who would not be the client’s first choice.

survivorship clause.

that unless the primary beneficiary lives a specified number of days after the death of the testator, the secondary distribution of the estate takes effect. Otherwise, your wishes may not be carried out.

married children who may be in unstable marriages, or where the client wishes to protect assets from inclusion in their children’s net family property.

clause specifically excludes any bequest or inheritance to a beneficiary from inclusion in the calculation of “net family property” of that beneficiary. This clause should specify that both capital and income be excluded.

ironclad, it can make the children aware of the issue and allow them to segregate inherited funds to offer protection.

bequests but you see possible situations, which might warrant a bequest (children from a former marriage, handicapped children, etc.)

wish to make in your will (e.g., cash to a child, a family heirloom, etc.). Care should be taken with bequests to not inadvertently cause an inequitable disposition.

to recognize where a specific asset should go to a specific beneficiary as opposed to just becoming part of the residual estate. Caution is needed to ensure that such bequests do not cause the remaining beneficiaries to be treated unfairly. For example, the client might want to leave the family cottage to one child because they use it frequently and enjoy it greatly. The cottage might have inherent tax liability attached to it due to a low ACB vs. the fair market value. If the cottage went to one child, then the estate would be left paying the capital gains tax on the disposition of the cottage. This might result in the residual estate being smaller than the testator expected and in the remaining beneficiaries receiving a smaller share of the estate than the child who received the cottage.

personal effects that they wish to go to specific family members.

instructions relative to your personal effects either specifically in the will or through a memorandum to the will. This allows you to leave everything to the beneficiaries or allows you to get as detailed and specific as you like in leaving certain items to specified individuals.

lets your client specify who in the family is to receive a variety of household effects and personal property. The memorandum to the will is a more flexible document as the client can change their memorandum frequently without having to have the whole will redrafted

has not been dealt with in the will.

clause advises the trustee that the disposition of a business is to be carried out in accordance with the terms of a specific buy-sell agreement. Reference should be made to the name of the agreement, company name, and date the agreement was drawn. It should also indicate that if that agreement is replaced by a revised agreement that the new agreement would apply. If no buy-sell agreement is in place, instructions can be given to the executor/trustee through the will.

regards to a business are many and varied. Be sure that appropriate expertise is enlisted to ensure that the succession plan is effective.

common disaster clause.

Ensures that if all named beneficiaries of the estate do not survive the testator, there is an alternative distribution provided. If no provision were made under the will for this eventuality, the distribution of the residue of the estate would be done according to the “intestate” provisions of the Succession Law Reform Act.

the client are carried out in the event that the named beneficiaries predecease them.

funeral instructions.

contained in the will regarding means or cost of the burial of your body. When such instructions are included in a will, you should ensure close family is aware of this provision since the will may not be read until after burial.

client has made their family aware of their wishes and any prearrangements that have been made.

any reference to organ donation.

contained in your will expressing your wish to make certain organ donations, or body donations. A donor card should be completed and close family advised of these wishes as well as specifying them in your will because organ donation needs to be implemented immediately upon death without delay.

need today and something that everyone should consider given their personal beliefs and wishes.

the will may have difficulty handling a complicated estate, this should be pointed out.

understands and is capable of handling the duties for which they are responsible.

sometimes a more complex estate requires a professional administrator.

obligations for the support of dependants that may not be adequately provided for in the will, it’s possible the will might be challenged.

dies and has not made adequate provision for the proper support of dependants, a dependant can file an application for a share of the estate with the courts. The court can order that a set amount of funds (lump sum) or periodic payments be provided for the dependants under the Dependants’ Relief Provision of The Succession Law Reform Act. A dependant can be any of the following: spouses (including common law), parents, children (including illegitimate children), etc. A dependant will be required to show the court that the deceased was providing support or was under a legal obligation to provide support prior to death.

advance what the obligations are than for the surviving spouse to find that their inheritance is diminished by such obligations. Also it ensures that these dependants are taken care of as the client would likely wish without forcing them into a court battle.

testamentary trusts in cases where the estate is large (over several million dollars).

of testamentary trusts to continue to hold some of your assets after your death. Using this strategy ensures that future taxes are minimized since each testamentary trust that is created will be taxed from the lowest marginal tax rate and up. This saves approximately $10,000 or more per annum in taxes for each trip up the tax table.

given current tax rates means that taxable income is in the neighbourhood of $100,000, thus each testamentary trust would have to have assets of about $1,000,000 + to get the full tax benefit. The services of a competent lawyer who is knowledgeable about trust law should be engaged to implement any strategy that contemplates the use of trusts.