Online will kits are inexpensive and convenient, and it’s easy to see the appeal. For a few dollars and an evening at the kitchen table, you can print a document titled “Last Will and Testament.” But a Will is only one part of an estate plan. What you’re really paying for when you work with a lawyer isn’t the paper. It’s the advice before signing, the safekeeping afterward, and the help your family gets when the Will is finally needed. Moreover, in the event of litigation or a Will challenge after you’re gone some of the best evidence of your wishes and intentions can be the notes and recollection of the lawyer that drafted your will which is a vital piece of the puzzle that is just not available in a DIY Will kit.
Here’s what that looks like in practice.
- Advice specific to your situation
A will kit asks you to fill in blanks. It can’t ask you follow-up questions, notice what you’ve left out, or tell you when your plan won’t do what you think it will.
When you meet with us, we look at your whole picture, including:
- How your assets are owned. Jointly owned property, RRSPs, RRIFs, TFSAs, pensions and life insurance with named beneficiaries often pass outside your Will. Many people are surprised to learn their Will doesn’t control some of their largest assets. We make sure your Will and your beneficiary designations work together.
- Blended families and second marriages. Balancing a current spouse and children from a previous relationship requires careful drafting, and it’s an area where do-it-yourself Wills often lead to disputes.
- Minor children. We discuss guardianship, trusts that hold money until children are old enough to manage it, and who should manage those funds.
- Beneficiaries with disabilities. A direct inheritance can affect a beneficiary’s eligibility for ODSP. A properly drafted trust, often called a Henson trust, can protect those benefits.
- Cottages, farms and family businesses. Passing these on raises questions about fairness, taxes and who will run or maintain them.
- Reducing Estate Administration Tax. In some cases, such as when you own shares in a private company, a multiple-Will strategy can legally reduce the probate tax your estate pays.
- The risks of litigation. We can explain what the process of a will challenge looks like, how to try to avoid that and how that might impact your overall estate plan.
- Choosing your executor and your attorneys. We talk through who is suited to the job, what alternates to name, and what happens if someone can’t act.
The result is a plan built around your family, not a template built around an average person.
- Powers of Attorney done right
Your Wills only take effect after death. Your Powers of Attorney protect you during your lifetime if illness or injury leaves you unable to make decisions. In Ontario, there are two:
- Continuing Power of Attorney for Property covers your finances, banking and real estate.
- Power of Attorney for Personal Care covers health care, housing and personal decisions.
Without valid Powers of Attorney, your family may need to apply to court, or go through the Office of the Public Guardian and Trustee, before they can help you. We explain the choices involved, such as naming one attorney or several, whether they must act together, and what instructions or limits to include. We make sure the documents are signed and witnessed correctly so banks and health care providers will accept them.
- Proper signing and evidence for the future
In Ontario, a Will must meet strict formal requirements. It must be signed in the presence of two witnesses who are both present at the same time, and neither witness may be a beneficiary or the spouse of a beneficiary. Mistakes with kit Wills are common. Examples include a beneficiary acting as a witness, witnesses signing at different times, or pages going missing. Ontario courts now have some power to fix improperly signed Wills, but only through a court application, which costs time and money at a difficult moment for your family.
When you sign with us:
- We supervise the signing so the formalities are met.
- Our office prepares a sworn Affidavit of Execution at the time of signing. This is needed when the Will is later probated, and it saves your executor from having to track down witnesses years or decades later.
- Our notes record that you understood and approved your Will. This is valuable evidence if anyone later questions your capacity or suggests you were pressured.
- Safe storage of your original documents
The original signed Will is what matters. A photocopy generally won’t do. If the original can’t be found, the law may presume you destroyed it on purpose, and your family can face a costly court process.
We keep your original Will, and your Powers of Attorney if you wish, securely in our office. Your family knows where to find it, and you never have to worry about a fire, a move or a misplaced envelope. When you want to review or update your plan, we have everything on file.
- Notarial copies when you need them
Banks, financial institutions, government offices and health care providers often ask for a certified copy of a Power of Attorney or Will. They rarely accept a plain photocopy, and handing over the original is risky.
As notaries, we can provide notarial copies of the documents we hold. Your attorney can then deal with multiple institutions at once while the original stays safely in our vault.
- Help when your estate needs to be administered
When the time comes, your executor, called an “Estate Trustee” in Ontario, takes on a significant legal responsibility, often while grieving. Because we drafted and hold the Will, we’re well placed to help them with:
- Locating and reviewing the original Will
- Applying for a Certificate of Appointment of Estate Trustee (probate), where it’s required
- Calculating and filing Estate Administration Tax and the Estate Information Return
- Dealing with banks, investment firms, the Land Registry and CRA
- Selling or transferring real estate
- Preparing accounts for beneficiaries and making distributions
Your executor doesn’t have to start from scratch with a stranger. They can come to the office that already knows your plan.
Is a will kit ever enough?
For some people with very simple circumstances, a properly completed kit may be better than nothing. But “simple” is often harder to judge than it looks. The cost of a problem with a Will almost always falls on the people you leave behind. While you might save a few hundred dollars at the time you prepare your Will it can cost your Estate many times more than that if problems arise after you’re gone.
Let’s talk about your plan
Whether you’re making a Will for the first time, updating an old one after a marriage, separation, new grandchild or move, or putting Powers of Attorney in place, we’d be glad to help.
Contact Laushway Law Office in Prescott to book an appointment.
This article provides general information about Ontario law and is not legal advice. For advice about your situation, please contact our office.