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A Will is a legal document that expresses a person’s wishes about what should be done with his or her property after he or she dies. You can also use a will to appoint an executor, name a guardian for your minor children, set up property management for young beneficiaries or create an inter vivos trust.
No one wants to think about the end of their own life. But we all know it’s a job that needs to get done sooner rather than later. When you pass away without a will your assets are directed in a manner determined by the government. At Daizy A. Bethea Law Firm, we can help you with making those hard decisions at the right time.
What We Include In Your Will:
When you trust us to prepare your will, we always include the important provisions. Instructions regarding complete sales and conversions of properties; paying estate debts; dealing with a minor’s share of the estate; and making income tax elections. Only your lawyer can tell you what these provisions are and why you need them in your will.
Our duty as your lawyer is to ensure that you have testamentary capacity and are not suffering from undue influence or duress. A client must provide a full and accurate inventory of his or her property and be apprised of relevant income tax issues. A client must also be aware of important issues or limitations affecting his will and understand and approve of the contents of the will.
Signing the Will
A “formal” will must be signed at its physical end by the testator and by at least two witnesses. Neither witness should be a beneficiary or the legal spouse of a beneficiary. A bequest or devise to a beneficiary who is also a witness may be void due to any improper or undue influence. The legal requirements for signing a will are complicated and must be handled by a lawyer. We apply the appropriate degree of due diligence to ensure that the will is signed in a timely manner, in compliance with the statutory formalities for signing a will.
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A client is best advised to deposit an original will in a safe deposit box and inform the will’s executor accordingly. This ensures that at the time of the client’s death, the repository of the original can be ascertained. If the will cannot be found, the law will presume that the client destroyed the will leading to a rebuttable presumption that the client died intestate.
Appointment of Estate Trustees
The estate trustee ensures a smooth estate administration process. The estate trustee’s role in administration of the estate includes attending to the funeral and burial arrangements, proving the will (if necessary), collecting and protecting estate assets. Other duties are paying creditors, paying taxes, distributing specific bequests, conveying devises of real property and finally, distributing the residue of the estate. The estate trustee may also have to establish one or more trusts for specified beneficiaries and administer any such trust until the time specified for final distribution.
Guardianship of Minor Children
A personal guardian must be named in your will for children less than 18 years. The natural or adoptive parents of any child do not have a permanently vested right to guardianship (colloquially custody). The best interest of the child prevails, and any parent or guardian can forfeit his or her right to guardianship. Children’s Aid Society, a grandparent or other relative is at any time entitled to apply for guardianship of a minor child.
If you are a mere testamentary custodian, we will apply to the court within a 90-day period for a “more permanent” order of custody for you.
Guardianship of the Property of Minor Children
Neither a parent nor a custodian of a minor child has an inherent right to possess or control property or assets of a minor child. A parent or custodian may apply to the court to be appointed as a guardian of that minor child’s property.
You will need a lawyer to draft a guardianship application.
Matrimonial Property Claims
The passage of the Family Law Act in 1986 ushered in a new matrimonial property division regime in Ontario that recognizes the concept of equalization payment. The rule of division of “specific” family assets is now replaced by the rule of division of the “value” of each property. The same rules apply were a matrimonial relationship ended with the death of one of the spouses.
Unless you and your spouse entered into a marriage contract waiving “equalization payment”, the surviving spouse (but not the deceased spouse) is entitled to an election of either an equalization payment or taking under the will.
We can guide you in deciding whether an equalization payment or taking under the will best serves your interest.
Dependant Support Claims
When a person who was financially dependent on the testator is not adequately provided for under a will, he may make a dependant support claim against the estate of the testator. Part V of the Succession Law Reform Act R.S.O. 1990, Chapter S.26. Such dependant may be a legal or common-law spouse, parent or grand-parent. A child, grandchild, or sibling of the testator must have a demonstrable parent-child relationship with him.
Estate Administration Tax (Formerly Probate Fees)
We draft multiple wills when we determine you have assets that do not require probate. We use this estate planning tool to help reduce estate administration taxes.
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