Wills & Estates FAQs
Why do you need a Will?
Statistics indicate that perhaps 50% of us do not have Wills! This means that when we die, our assets will be distributed according to a government-directed plan. This essentially allows the government to make a will for us because we didn’t. This will is not necessarily your chosen plan. “Estate” means all of the assets you own or are entitled to at the moment of death. This typically includes personal property such as jewellery, furniture, collections, art, and bank accounts, RRSPs, RRIFs, investments, GICs, shares, inheritances, etc., as well as real property such as your house, condo, or cottage. Registered plans that name a beneficiary are excluded from estate assets but are taxable.
A Last Will and Testament is a written direction by you which tells your loved ones and the world who shall be entitled to receive all of the worldly goods you worked so hard to accumulate in your lifetime.
The law sets out by statute certain minimum requirements for a Last Will to be valid. These include your name, the date, the name of the person you appoint to look after everything (an Executor), the things, money, and property you want to give, the names of the persons who are to acquire the property and your signature. This short list is not exhaustive and of course there are pitfalls in attempting to do such an important document yourself.
While it is very important to express your last wishes, it is equally important to do it right.
A lawyer is trained to help you with this task. Our law firm focuses especially on this type of work to ensure that:
- You complete a valid and legal will;
- You are guided through the process so that your wishes are clear;
- You miss the pitfalls or land mines that trip people up and may result in costly legal actions; and
- You take advantage of income tax strategies.
We know that there are “Will Kits” or “Self-Counsel” Will forms for sale which encourage you to buy and fill in the blanks. Experience proves that this doesn’t work effectively because a Will is a legal document which has to meet all of the technical and legal tests set out by law. It is much better to pay a little more money for wise counsel to receive current advice and help to ensure that you not only meet your expectations and satisfy yourself, but also that you end up with a valid and enforceable document.
Our law office will make this process painless for you and your loved ones and you will be able to go forward in the comfort and knowledge that you have looked after yourself and those you care about.
Why do you need an estate plan?
Any or all of the following may apply to you:
- You’ve worked hard to accumulate your assets;
- You dislike paying excessive taxes that may be avoidable;
- You want your family and loved ones to continue the same lifestyle after you’re gone;
- You want your children to have a “leg up” in the world;
- You want your grandchildren to be able to access and finance post-secondary education;
- You want to ensure that a special disabled or dependent person is looked after during his or her lifetime;
- You want to honor your favorite charities
- You have a blended family and want to avoid arguments;
- You want to make sure your beloved pets are not abandoned.
All of the issues that apply to you can be addressed and solved with professional help.
We are professional legal providers. We will help design and prepare your Will, Power of Attorney and estate plan at an affordable cost.
Did You Know?
It is estimated that approximately $800 billion from Canadian estates will be distributed according to provincial laws because people did not have Wills or the Will cannot be located.
Already over $250 million is on the books of the Bank of Canada by way of default.
How can I tell if the Will I wrote is legal and valid?
We can review your document and advise you.
I am unable to sign my name. How can I make a Will?
A lawyer can supervise your applying your initials and script a special paragraph to the Will to accommodate this and make it legal and valid.
If you can knowingly apply and ‘x’ that does suffice if there are witnesses present.
Does my Executor have to live in Manitoba?
No, an Executor can reside anywhere else as long as he or she is not a minor and is of sound mind. However, if he or she lives outside of Canada, a bond would be required by our Court.
Can my Power of Attorney also be my Executor?
Yes, as long as he or she meets the basic prerequisites.
Can my Executor be a beneficiary?
Yes, that would not be a conflict.
Can my mother make a Will if she has been diagnosed with Alzheimers?
The prerequisites of being able to perform this task is that the person be of sound mind, memory and understanding. This includes knowing the approximate amounts of her bank accounts and investments, knowing the whereabouts of her assets, the approximate value of her entire estate, and knowing the names of the persons she wants to inherit her estate. It is unlikely that a person in the advanced stages of Alzheimers would be able to meet the above tests.
The Public Trustee has been looking after my Dad’s money while he is in a nursing home. Can I handle his estate when he dies?
If your Dad has not made a valid Will, an application would have to be made to the Court of Queen’s Bench to appoint you as an Administrator, and you would have to be a resident of Manitoba and post a bond.
My mom is 90 years old and never made a Power of Attorney. How do I help look after her and her personal business?
If she is mentally competent, then you can simply get a Power of Attorney done by a lawyer appointing you her lawful attorney if she so wishes. If on the other hand, she is confused or suffers from a form of dementia, then she would not be able to sign any legal document. If she owns assets which must be dealt with and she is not able to exucute a Power of Attorney, there are two possibilities:
- Request the intervention of The Public Trustee; or
- Apply to the Court of Queen’s Bench to be appointed as her Committee. (This is rather costly and therefore it is best to have done a Power of Attorney early in life.)
Do I need to have witnesses to my Will?
A holograph will (one written entirely in your own handwriting) does not need a witness; however, on death, your Executor has the job of proving it is your handwriting and providing evidence that you were of sound mind, memory and understanding at that time.
I am a common law spouse. If my partner dies without a will, where do I stand?
The law provides for common law spouses in certain circumstances to inherit the first $50,000 of the estate as well as get homestead rights. Each case turns on its own particular facts.
A typed will requires two adult, independent witnesses. If a witness is a beneficiary, then any gift to that person becomes void.