Your Will: Save Money - Get a Lawyer!
Many executors or surviving family members contact me after someone in their family has died. Even though the family ask for help with the income taxes, I do provide some general guidance regarding how the Estate is processed by the executor.
One thing I've realized is if the Will needs to be Probated, it's much easier if the Will was prepared by a lawyer.
What makes a lawyer prepared Will different than one that was prepared using on line sources or the preprinted fill in the blanks version or other Wills individual have done on their own?
First a quick explanation of why a Will needs to be Probated.
The executor or the lawyer does not determine if a Will needs to be Probated.
It is the organizations the executor needs to deal with that may demand the Will be Probated. In most cases it is Land Titles (to sell a home or property) or the financial institutions (banks, credit unions, investment companies) that will not deal with the executor until he/she has been legally determined.
The executor applies to the provincial court to have the Will reviewed. The executor can hire a lawyer to help with this (and pay lawyer fees), or they can do it themselves. If you need assistance applying for Probate by yourself, I may be able to help the executor if the estate is "simple".
The actual probate fees are the same if you use a lawyer or do it yourself. In Manitoba, the probate fees are about 0.7% ($700 on $100,000)
The provincial judge declares that this is the legal Will that can be used by the executor to deal with all Estate matters.
It is the organizations that want to make sure they are dealing with thecorrect legal executor. They don't want to find out later that there is another Will with another executor named that they should have been dealing with. They are eliminating the risk that another executor comes forward at a later date. They don't want any legal problems.
So what is it about a lawyer prepared Will that makes it much easier and less expensive if the Will needs to be probated?
There is more to just drawing up and printing the Will and signing it.
First, the Will needs to be witnessed properly. The witnesses cannot be certain people (cannot be the executor, beneficiary or married to the same).
Next, one of the witnesses signs an "affidavit of execution". This document is completed by the witness who acknowledges how the Will was signed by the writer of the Will and the other witness. This document must be completed and affirmed before certain professionals (notaries and commissioners for oaths). And these certain professionals also need to sign the back of the original Will too.
Once everything is completed, then we can say the Will has been properly "executed" or completed.
If a Will has not been properly executed, then all these attachments and signatures need to be done after you have died. So how difficult will it be for your Executor to find one of your witnesses? What if the witnesses didn't write their full name, address and phone number and you cannot read the signature? What if they cannot be found? What if they are no longer alive?
If the Will needs to be probated and the Executor needs to get all this done, it may cause delays. And if the Executor needs the lawyer to help, it may cost a lot more too. Much more than the fee you pay to have the lawyer create the properly executed Will in the first place.
So even if you think you need a "simple" Will, you'd be better off getting a lawyer to help you execute a proper Will so your executor can do his or her job as easily as possible and save the Estate some money.
Better to pay a little bit now instead of a lot more later!
A quick reminder that I have been holding a Death Café on a monthly basis: the third Thursday of the month. If you are interested, call or email us and we will add you to our contact list.
Some recent Death Café attendees have commented: "Well worth the time and plan to attend more than once", "So nice to have a group discussion, very informative and thought provoking", "This is a discussion every person should be part of", "Amazing what we don't know!"
AnniMarkmann is a Personal Income Tax Professional and Certified Financial Planner; living, working, and volunteering in our community. Contact her at 204.422.6631 or 36 Dawson Road in Ste Anne (near Co-op) or Info@SteAnneTaxService.ca