2. Why should I see you to have my Will drafted as a formal "Notary Will" (vs. just doing a Lawyer's Will, a Handwritten Will or even a Do-it-yourself Will Kit)?
3. What happens to my estate if I pass away without an Estate plan/"Notary Will"?
4. Will my "Do-it-yourself Will kit" be sufficient or will it present problems for my loved ones and my estate?
5. Will my "Handwritten Will" be sufficient or will it present problems for my loved ones and my estate?
6. Will my "Lawyers Will" be sufficient or will it present problems for my loved ones and my estate?
7. How often should you review my Estate plan/Notary Will?
8. How can I save money for my heirs by minimizing or deferring taxes with my Estate plan/Notary Will?
9. What is a Mandate/Power of Attorney and how can it be beneficial in the event of me becoming legally incapable?
10. What is a Living Will and how can it be beneficial in the event of me being diagnosed as having a terminal illness?
11. What is a Family Trust and how can it be financially beneficial for my assets and my loved ones?
12. What is a Testamentary Trust? How is this different from an Inter vivos Family Trust? What is a Spousal Trust and how can this be financially beneficial for my spouse if s/he survives me?
13. What is the cost of a Will, Mandate, Power of Attorney, Family Trust, Codicil or other similar amendment of a previous Deed?
14. What advance planning or information do I need to bring to prepare an Estate plan/Will?
15. How long will the process take from start to finish?
16. What are the costs and delays involved in settling an estate?
Answers:
1.
Intestacy is a problem to be avoided, whenever possible, as the
Provincial government dictates where your assets will be distributed.
This often results in difficult estate settlement issues and property management problems.
2.
To avoid the additional costs ($3-4,000) and additional delays (2-3
months) caused by the need to Probate non-Notary Wills, when
settling an estate. Notary Wills do not need to be probated and
can save your estate these unnecessary expenses and delays. In
addition, you will get the legal skill and expertise of a specialist in
this area of law as well as some highly beneficial tax planning ideas.
3. Intestacy results and the Government decides who gets what.
4. Do-it-yourself Wills must be probated before being able to implement them (see answer 2).
5. Handwritten Wills must also be probated (see answer 2).
6.
Lawyers' Wills must also be probated before implementation and will
also incur the additional cost ($3-4,000) and delay (2-3 months) beyond
the ordinary costs and delays of settling a Notary Will.
7.
Clients are advised to have us review their personal/family circumstances and
the pertinent property law, family law and tax law legislation, at
least once every five (5) years.
8. We can plan and structure
tax savings through the careful use of rollover provisions found in the
Income Tax Act, as well as through the strategic use of testamentary
trusts involving multiple contingent beneficiaries. Spousal trusts also lend themselves to income-splitting opportunities.
9. A Mandate
is a document appointing a representive to look after your personal
care and financial affairs, in the event you suffer a permanent legal
incapacity. A Power of Attorney is a document appointing another person
to represent you, in terms of your property affairs only, while you are
still legally capable. The two documents may be created separately or
combined into one Deed.
10. A Living Will is a document that
provides directions to a third person as to how you wish medication and
nursing assistance to be administered, in the event you are diagnosed
with a terminal illness.
11. A Family Trust is a legal device
that is used to hold assets being settled for the benefit of a third
party known as a beneficiary. A properly structured family trust can
offer privacy, asset protection, and income-splitting opportunities.
12.
A Testamentary Trust is a trust that is established in a Will. It
offers many of the same legal benefits as a family trust, while also
having the advantage of being taxed on a graduated basis. A Spousal
Trust is a form of testamentary trust that uniquely benefits the
surviving spouse. The same income-splitting advantages are available to
the spouse, resulting in important tax savings.
13.
The cost of planning and preparing an Estate plan/Will varies
proportionately with the complexity of a person's family affairs and
financial affairs. The greater the complexity, the more time one will
spend with a client in fact-gathering, issue analyzing, and making
recommendations. A Basic Notary Will costs $325 per Will and this
includes two meetings, the preparation of the Deed and a complete
explanation of all of the clauses within it. You also receive a
certified copy and the Will is formally registered. A Trust Will costs,
on average, $495 per Will. A Spousal Trust Will costs $595 per Will. A
Mandate for Incapacity costs $325. A Power of Attorney also costs $325.
If they are combined into one document, the cost for the two becomes
$425. A Family Trust costs about $1,000, on average. A Codicil or other
amendment to any of these Deeds costs $250, reflecting the need to
meet, gather information and then prepare the necessary amending
document. These prices are current as of February, 2008. Payment is due
on the signing of the Deeds.
14.
Before the first meeting, a
client is advised to organize their personal proofs of identification,
citizenship, residency, and matrimonial status (marriage certificate
and marriage contract), details on their ascendants, siblings, and
descendants, as well as on their property, financial, investment, and
business affairs. Insurance policies held, either personally or
corporately, should also be brought. One should also have some idea as
to how you would like your assets to devolve in the event of an
untimely death or incapacity. What-if scenarios should be examined from
the perspective of the surviving spouse, parents, children,
step-children, grandchildren, siblings, half-brothers and sisters,
nephews and neices, business partners and
employees. Thought should be given to the peripheral questions of
suitable safeguards, Tax minimization, choice of Executors, Trustees,
Guardians, Tutors, Curators, Protectors and Consultants. These choices
also give rise to sub-issues of restrictions on powers, remuneration
and causes for dismissal and replacement. Some thought should also be
given to funeral home preferences (exposure or not), funeral service
preferences (simple or not), burial or cremation and the ever important
question of organ donations (transplantation only or research too).
15. The process of preparing your
Estate plan and Will involves two meetings. The first one lasts between
one to two hours and focuses on fact-gathering, issue analysis and best
practice recommendation making. The second meeting, about 2 weeks
later, also lasts between one to two hours. This is the time to see the
draft Deed of your Will. This meeting allows for a confirmation of your
wishes and a discussion of the tools that have been incorporated into
the Will's structure. A clear explanation of the wording used in each
of the clauses is made and corrections or amendments are noted. The
final Deed is then prepared and the clients sign it in the presence of
a formal witness provided by our office. We send you your certified
copies of the Will Deeds about 2-3 weeks after the signing and we also
look after the formal registration process.
16. The costs of
settling an estate vary according to the complexity of the tasks and
time involved in giving effect to the directives contained in the Will.
The industry standards, which are based on the policies of the large
Banks/Trust companies and on the legal jurisprudence issued by the
Quebec courts, provide for fees based on the size of the assets held by
the estate. Trust companies typically charge 4-5% of the gross assets
of the estate, with minimums imposed in the order of $15,000.
Professionals (Notaries, Lawyers) also typically charge a lower percentage in
the range of 3% of the gross assets, but usually without imposing any
minimums. Friends and family are usually awarded fees of 2-3%,
depending upon the complexity of the tasks and the burden imposed by
the responsibility. An average estate typically takes between 6-8
months to settle, but it is not uncommon to have some estates take
years to settle.
For answers to other related questions, please consult the following pamphlets:
Please note when viewing our pamphlets that each one comes in a French and English format.
When you first open the document, you will see the French version of
the pamphlet. For the English version, simply scroll down the page and the English text will appear.
