Prearranging for your end of life may be a disagreeable concept, but a necessary one nonetheless. But only by having a properly prepared will can you bring to your loved ones the security of knowing they are honouring your last requests. A will should be prepared when you are most capable of planning rather than when your mental acuity could be called into question.
For your Last Will and Testament, you must designate someone as an executor of your estate. An executor should be someone you trust to carry out your instructions on the division of your personal property at the time of your death. The executor is also required to file a final income tax return on your behalf. All income tax must be paid before your personal property can be distributed to your inheritors.
A will can be challenged for various reasons such as fraud or the document’s legality, but it can also be challenged if something in the will is illegal or goes against public policy, such as disinheriting a spouse or a dependent minor.
If you are the parent or guardian of minor or disabled dependents, you should designate a guardian. If the dependent is to receive an inheritance, a trustee of the inheritance can be appointed until the child reaches an age you specify.
While the courts will try and take into account any instructions you have left behind, even if not created according to accepted procedures, it can easily become much more of a burden on your estate and your executor. If you prepare these documents on your own, it is possible you may inadvertently not follow certain laws or practices simply due to being unaware. Did you know a Last Will and Testament should be signed in the presence of two “disinterested” witnesses who have nothing to gain from the will: i.e., not a beneficiary or even the spouse of a beneficiary? Additionally, all three people must sign a declaration that the will is being signed in each other’s presence.
When creating your will, it is also a good time to consider what you would want your family to do in a situation where you may be unable to communicate your wishes due to poor health. In this case, you should prepare an advance directive, also referred to as a Living Will, which may include something as straightforward as becoming an organ donor to a request in the form of a Do-Not-Resuscitate order. If you are frightened by the span of unforeseen possibilities, you may choose to authorize someone you trust with a Power of Attorney specifically to make health-care decisions in the event you are unable. You can prepare many of these documents on your own; however, it is recommended to have an attorney review them to ensure they adhere to the law of the province and that your intentions are clearly articulated. There are lots of online resources to help you in this process, such as from Speak Up.
So, consider preparing your will and advanced care directives to help your loved ones when you are unable to make your wishes known. Whether you would like legal assistance with the preparation of your wills, powers of attorney or with the administration as executor of someone else’s Last Will and Testament, we are here to help.