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    August 2013
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    Everyone Has A Will

    Don Shaughnessy

    Here’s why.

    There may be 56% who have no signed will but there are 0% who have no will at all.  In Ontario, the succession law reform act provides a will for you and there are similar acts in every other jurisdiction.

    There is our government working on our behalf again.  If you need it, they provide it.

    The will they provide for you may not be exactly the same as the one you would draw up for yourself.  In fact I would estimate that the probability of your creating their will, by choice, is about 1 in a million.  Maybe even less than that.  Their idea of fair is a little more aimed at pleasing everyone possible.  And, of course, it will cost more and take longer.

    Most jurisdictions have their own rules so you you should ask a lawyer what your particular rules are.  In Ontario your will looks roughly like this:

    I require the court to appoint an administrator for my estate

    I require the administrator to post a bond of two times the value of my estate

    I require that the administrator make no effort to reduce any income taxes that I may owe as the result of my death.

    I instruct my administrator to take no care to keep assets in specie even though my family may prefer that treatment.

    I instruct my administrator to make no effort to consider what the heirs want of my assets in settling the estate.

    I instruct my administrator to make no effort to complete their task expeditiously.  Certainly not in less than one year.

    I instruct my administrator to be very cautious about interim distributions

    I instruct my administrator to pay all liabilities including taxes and to sell whatever assets will sell easiest to provide any cash my estate may need.

    As to distributions of what remains, I instruct my administrator to:

    1. Transfer $200,000 to my spouse.
    2. Divide the remaining 2/3  as follows.  If one child 50-50 with spouse.  If more than one child then 1/3 to spouse the remainder equally to the children.
    3. In the event any child is less than 18, I instruct the public trustee to hold the assets for that child until their 18th birthday and then to deliver the assets to them intact.
      1. An illegitimate child is a child for purposes of distribution.
      2. A predeceased child provides complications too.

    It is not impossible that this will would work out, but that is not the way to bet.  Many people who own complex assets do not have wills.  They are looking at higher than needed tax and other costs and will likely have no described plan that suits their own ideas.

    If you have assets are even slightly  more complicated than a home in joint tenancy, a small RRSP, and a bank account, seek the services of a knowledgeable attorney.

    Oh, why restrict it!!  Talk to any attorney.  Even an attorney who won their law degree in a poker game two weeks ago could draft a more appropriate will.  And while there, notice that 71% of Canadians have no powers of attorney.  Address that too.

    Don Shaughnessy is a retired partner in an international accounting firm and is presently with The Protectors Group, a large personal insurance, employee benefits and investment agency in Peterborough Ontario.

    The MONEY® Network