If you’ve scribbled down your final wishes and tucked them in a cabinet or the couch cushions, you may want to consider documenting and storing them properly. That means having a legal Will and keeping it up to date. Nicole Ewing, Director, Tax and Estate Planning, TD Wealth, joins Kim Parlee to discuss some of the ways you can prevent confusion for your family and loved ones should you pass away.
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* There are no shortage of stories involving celebrities worth hundreds of millions of dollars who don't take the time to get a proper will. It can often lead to heated disputes and confusion amongst family members. And it can happen to everyday people as well.
* So here to make sure your final wishes don't get lost in the couch cushions is Nicole Ewing, Director of Tax and Estate Planning at TD Wealth. Nicole, great to have you with us.
* Thanks, Kim.
* Let's start with the story that we've been hearing. If your children finds a list of wishes, say, locked in a cabinet somewhere, and later on another one of your children finds it in between the couch cushions, which one is considered the true will?
* Well, always it depends. I would say, firstly, we need to clarify that wishes and letters of wishes are just that. It's wishes. So unless you can confirm that that's testamentary intent and that is actually a will, neither of them would be regarded as the will.
* If it's a little bit more than that, if there's more substance to those documents and we think that it could be a will, then we're looking at which one is later. So are they dated? And generally, the later will would govern.
* But this is really where we need to get into whether or not these documents might actually be wills. And if they're not, then you're in a state of intestacy, which is not ideal for anybody.
* Let's back it up and let's kind of get back to the beginning. And let's talk about if you do not have a will, I'm assuming that makes it a pretty complicated process for your family to figure it out. So let's just start with your family can't find a will. What happens?
* So if there's no will, you've gone through that exercise, you've done your due diligence and looked for it, and there is no will, you're going to be in a situation of an intestacy. And this is where the government of your province will have rules on the books about who has the authority to apply to be the executor and to do the administration of your estate, who gets your assets, and when they get them.
* So these are the, say, the intestacy rules that, essentially, write your will for you. So if you can't find one, there is one written for you. It's just maybe not saying what you want it to say.
* Yeah, or doing what you want it to do at the same time. Let me ask you this-- if you have an outdated will or let's just even say you have a handwritten will, multiple wills, have some do-it-yourself wills-- let's kind of add it all in there. Or let's just say you decided at any point, you're not going to work with a lawyer. You want to do it on your own. Why is it important or how do you make sure that your wishes are clear?
* I hope you saw my face fall--
* I did.
* --when you said "not working with a lawyer." So lawyers serve a number of purposes. Firstly, they are helping you think through a lot of the questions that you might not think through for yourself in terms of what you want your estate to do or what you want your will to say. But we also need to be thinking about there are other issues that could make your will invalid, such as undue influence or influence from somebody else in your family.
* You might not have capacity. There might be these other issues. And a lawyer's notes are going to be able to provide certainty about what happened during that meeting. What was said? What was the intent? What did everybody understand that will to be? And was it signed in appropriate circumstances?
* So that's going to give you a level of certainty that doing this on your own won't. We also need to think about legalese. And I know that sometimes people try to, and I've seen this, either copy documents that they've seen somebody else do or use terminology that they've heard.
* But legalese has a function in the law. And that's to provide certainty. So there's certain phrases or words that have been interpreted by the courts, and so they have a defined meaning.
* So when a lawyer is drafting your will, they're using those phrases and terms because they know how they're going to be interpreted by the courts and they can give you that certainty of result. If you're not familiar with that terminology, you might actually be inadvertently saying something that you don't mean. So it's very important to work with professionals who can help you understand what the questions are and be there to support that you did understand what you were signing, and these are your wishes, and be able to essentially be a witness to that if there is any concern later on that these documents don't reflect your wishes.
* And it's not only the cost-- sometimes, people don't want to do it to incur the cost today, but they need to realize that there's going to be a cost in terms of time-- how long this takes to settle-- and also, perhaps, a financial cost that you're not expecting at the other end if it's not planned out.
* Those certainly are costs, and so is the emotional cost that this could take on your family as well. So none of this is clear. If we don't have written documents, then you are in that state of intestacy. Nobody has the right to make those decisions for you and simply act on your behalf-- so not your spouse, not your parent, not your child.
* They will need to apply to the court to be granted that authority to be able to act on your behalf. There might be differences of opinion about who should take that role on. So there's potential for conflict there.
* We then need to spend the money to prove that what we know of the facts is true. I worked on a case once where the will was forged, and the signatures were not valid, and we had to go through the exercise of proving those signatures were not valid by pulling up all sorts of other documents and engaging experts, which were not free. So there's a lot of costs associated with this. And the time to apply for the administration without a will is always going to take more time than if you have the documents in hand, and everything is valid, and you're able to make that application as quickly as possible.
* All right, so what are the right steps so that people are aware-- your family, how you want things to carry out. What should you be doing?
* Well, we want to go to a lawyer, right? Because we want them to be able to confirm that everything we said is true, that they take notes to confirm what our intentions were, that our family members were not in the room giving their opinions about things-- that everything was above board. We want to work maybe with our financial planner as well to understand how our financial plan leads into our estate plan.
* There's a lot of overlapping considerations there. So we want to work as part of a team. But when you do that, and you have these people who have worked with you while you're preparing your will and your estate planning documents, they are able to be those witnesses if there is any question about whether these documents were valid, what your intent was, what you wanted to have happen in those situations. So working with the professionals definitely puts you in a better position than you would have been had you tried to do this on your own and think about what the words mean.
* I've only got about 30 seconds, Nicole, but, also, this is something that if something major happens in your life, you should update your will.
* Absolutely. So we want to be looking at our wills every few years in any event. So the law may have changed, the world may have changed, our wishes may have changed. So we always want to be just reflecting back, and it's not something we put in a drawer and don't think about.
* But also, life events-- so if you're married, divorced, separated, had children, moved provinces, acquired assets in another jurisdiction, those are all reasons to relook at your estate plan, and your wills, and make sure that they contemplate all of your assets, all of your personal circumstances, and, really, what you want to have happen when you're not here to speak for yourself.
* Nicole, always a pleasure. Thanks so much.
* My pleasure.
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* There are no shortage of stories involving celebrities worth hundreds of millions of dollars who don't take the time to get a proper will. It can often lead to heated disputes and confusion amongst family members. And it can happen to everyday people as well.
* So here to make sure your final wishes don't get lost in the couch cushions is Nicole Ewing, Director of Tax and Estate Planning at TD Wealth. Nicole, great to have you with us.
* Thanks, Kim.
* Let's start with the story that we've been hearing. If your children finds a list of wishes, say, locked in a cabinet somewhere, and later on another one of your children finds it in between the couch cushions, which one is considered the true will?
* Well, always it depends. I would say, firstly, we need to clarify that wishes and letters of wishes are just that. It's wishes. So unless you can confirm that that's testamentary intent and that is actually a will, neither of them would be regarded as the will.
* If it's a little bit more than that, if there's more substance to those documents and we think that it could be a will, then we're looking at which one is later. So are they dated? And generally, the later will would govern.
* But this is really where we need to get into whether or not these documents might actually be wills. And if they're not, then you're in a state of intestacy, which is not ideal for anybody.
* Let's back it up and let's kind of get back to the beginning. And let's talk about if you do not have a will, I'm assuming that makes it a pretty complicated process for your family to figure it out. So let's just start with your family can't find a will. What happens?
* So if there's no will, you've gone through that exercise, you've done your due diligence and looked for it, and there is no will, you're going to be in a situation of an intestacy. And this is where the government of your province will have rules on the books about who has the authority to apply to be the executor and to do the administration of your estate, who gets your assets, and when they get them.
* So these are the, say, the intestacy rules that, essentially, write your will for you. So if you can't find one, there is one written for you. It's just maybe not saying what you want it to say.
* Yeah, or doing what you want it to do at the same time. Let me ask you this-- if you have an outdated will or let's just even say you have a handwritten will, multiple wills, have some do-it-yourself wills-- let's kind of add it all in there. Or let's just say you decided at any point, you're not going to work with a lawyer. You want to do it on your own. Why is it important or how do you make sure that your wishes are clear?
* I hope you saw my face fall--
* I did.
* --when you said "not working with a lawyer." So lawyers serve a number of purposes. Firstly, they are helping you think through a lot of the questions that you might not think through for yourself in terms of what you want your estate to do or what you want your will to say. But we also need to be thinking about there are other issues that could make your will invalid, such as undue influence or influence from somebody else in your family.
* You might not have capacity. There might be these other issues. And a lawyer's notes are going to be able to provide certainty about what happened during that meeting. What was said? What was the intent? What did everybody understand that will to be? And was it signed in appropriate circumstances?
* So that's going to give you a level of certainty that doing this on your own won't. We also need to think about legalese. And I know that sometimes people try to, and I've seen this, either copy documents that they've seen somebody else do or use terminology that they've heard.
* But legalese has a function in the law. And that's to provide certainty. So there's certain phrases or words that have been interpreted by the courts, and so they have a defined meaning.
* So when a lawyer is drafting your will, they're using those phrases and terms because they know how they're going to be interpreted by the courts and they can give you that certainty of result. If you're not familiar with that terminology, you might actually be inadvertently saying something that you don't mean. So it's very important to work with professionals who can help you understand what the questions are and be there to support that you did understand what you were signing, and these are your wishes, and be able to essentially be a witness to that if there is any concern later on that these documents don't reflect your wishes.
* And it's not only the cost-- sometimes, people don't want to do it to incur the cost today, but they need to realize that there's going to be a cost in terms of time-- how long this takes to settle-- and also, perhaps, a financial cost that you're not expecting at the other end if it's not planned out.
* Those certainly are costs, and so is the emotional cost that this could take on your family as well. So none of this is clear. If we don't have written documents, then you are in that state of intestacy. Nobody has the right to make those decisions for you and simply act on your behalf-- so not your spouse, not your parent, not your child.
* They will need to apply to the court to be granted that authority to be able to act on your behalf. There might be differences of opinion about who should take that role on. So there's potential for conflict there.
* We then need to spend the money to prove that what we know of the facts is true. I worked on a case once where the will was forged, and the signatures were not valid, and we had to go through the exercise of proving those signatures were not valid by pulling up all sorts of other documents and engaging experts, which were not free. So there's a lot of costs associated with this. And the time to apply for the administration without a will is always going to take more time than if you have the documents in hand, and everything is valid, and you're able to make that application as quickly as possible.
* All right, so what are the right steps so that people are aware-- your family, how you want things to carry out. What should you be doing?
* Well, we want to go to a lawyer, right? Because we want them to be able to confirm that everything we said is true, that they take notes to confirm what our intentions were, that our family members were not in the room giving their opinions about things-- that everything was above board. We want to work maybe with our financial planner as well to understand how our financial plan leads into our estate plan.
* There's a lot of overlapping considerations there. So we want to work as part of a team. But when you do that, and you have these people who have worked with you while you're preparing your will and your estate planning documents, they are able to be those witnesses if there is any question about whether these documents were valid, what your intent was, what you wanted to have happen in those situations. So working with the professionals definitely puts you in a better position than you would have been had you tried to do this on your own and think about what the words mean.
* I've only got about 30 seconds, Nicole, but, also, this is something that if something major happens in your life, you should update your will.
* Absolutely. So we want to be looking at our wills every few years in any event. So the law may have changed, the world may have changed, our wishes may have changed. So we always want to be just reflecting back, and it's not something we put in a drawer and don't think about.
* But also, life events-- so if you're married, divorced, separated, had children, moved provinces, acquired assets in another jurisdiction, those are all reasons to relook at your estate plan, and your wills, and make sure that they contemplate all of your assets, all of your personal circumstances, and, really, what you want to have happen when you're not here to speak for yourself.
* Nicole, always a pleasure. Thanks so much.
* My pleasure.
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