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moneysense.ca, 29/03/07
Ask the Readers: Will Kits
Jamey from Guelph writes that he doesn’t have a will yet and wonders if the widely-available Canadian Will Kit is a good solution. We have already talked to a lawyer and are not taking the will kit route because I don’t want to take any chances with such an important document. What do you think? Have you used a will kit and would you recommend it?
moneysense.ca, 29/03/07
We’re doing the lawyer thing – I don’t know if the will kit is a valid alternative but I don’t want to find out the hard way that it isn’t (not that I’ll know)
We have a lawyer in the family, so when we wanted to do up our wills and power of attorney’s I asked him about such “DIY kits”. He said 99% percent of the time they are not executed properly and that he’d handle it.
It didn’t cost us a cent to go with him… so that must say something
I’m still in the easy stage of having a will, so I just use a holograph will (check if it is valid in your province or territory). Basically you write out what you want on a blank sheet of paper and sign and date it to have a will.
I also have the benefit of a lawyer friend to read it over to ensure I’m not missing anything.
CD
I believe that anyone with a high school education can understand/complete these Will kits. Lawyers and accountants try to keep things more complicated then they actually are. Think about it – their livelihood depends on it. QuickTax is to an accountant what Will Kits are to lawyers. If you can use QuickTax – you certainly can use a Will kit.
I think fear, and the “can’t be bothered” syndrome affects peoples decisions.
Thanks for taking on my question. I like the idea of a will kit to “cover us” for at least the next few years.
Loki, thanks for the QuickTax analogy (I’m very comfortable with that software). But what will kit would you recommend? I believe there was some controversy a few years back with the “Candian Legal Will Kit”, and that’s why I no longer see that for sale in places like Staples.
The bottom line is that a “will kit” will provide you with a valid will. The problem is that it won’t necessarily be a “catch all the loose strings” will.
After you die, you won’t be around to take care of any “loose strings” or things that aren’t properly dealt with in your will.
Just because a will is “legal” doesn’t mean it’s as complete or thorough as it could be. It’s also, as Jason states in Comment #2, possible that the will is drafted correctly but not properly executed, making it invalid.
If a will is done correctly through a lawyer, it shouldn’t ever need to be updated unless you have a major life event (marriage, divorce, etc). Money well spent, IMHO.
Make sure too that if you are taking the time to do up a will on your own, check out the following site for power of attorneys (property/care) that you can do on your own as well:
http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/poa.pdf
Definitely is very important.
But, to note again, our lawyer said that power of attorneys are not executed properly at all either. Just an FYI.
On another note, thanks Canadian Capitalist! I look forward to reading your blog everyday.
I am not sure I agree with the tax analogy. If I make a mistake on my taxes, I can file an adjustment. Or CRA will get back to me that I have missed something.
It is far too important that we don’t make any mistake with our wills. Maybe it is true that wills are simple and lawyers are just taking advantage of us. I am unwilling to take the risk for a few hundred dollars.
Some things in life you can not be cheap about. If you are married, have a house, or have kids then use a lawyer, Phone around for prices, but don’t cheap about this. Do a Power of Attorney at the same time also. If money is a problem check out legal aid. I am not a big fan of lawyers, but they are needed sometimes.
We had a similar experience to Jason above.
We were planning to go with a simple will kit since our estate was simple but my brother mentioned some problems he had dealt with the will kits *and* holographs and offered to do our wills, PoAs, and personal directives for free. Our grandfather died with a holograph and my brother said it wouldn have been a lot more hassle had grandpa not had a lawyer for a grandson.
If you can justify paying a Lawyer to prepare your Will and an Accountant to prepare your taxes and a Real Estate Agent to sell your home and a Financial Planner to sell you mutual funds – then go for it.
I’m just saying that there are cheaper alternatives. If you’ve finished high school I’m pretty confident that you can do each of the 4 tasks above on your own and save yourself money along the road. But keep in mind their livelihood is on the line…precisely why they make it “look” complicated.
Personally, I just got through Probating a Will myself through the courts – when everyone said get a lawyer – get a lawyer. It’s really not hard to communicate with banks and the Land Registry Office, Ministry of Transporation et cetera to get that rubber stamp from court saying “yup, the Will is valid”… BTW probating a Will is much more “complicated” (so they say) than preparing a Will. I saved myself a ton of money of the value of the estate since I didn’t hire a laywer. They even came up with a real complicated equation for their fees had I retained their services for probating the will – it went like this… 3% of first $10,000 — 2% of next $90,000 — 1.25% of next $200,000 — 0.5% of anything above.
Loki: Fair enough. You seem to have researched this topic. As for me, I don’t even know what probate is. I guess we end up paying for stuff we don’t want to do ourselves.
Take a look at this free online website. Proper signing of the Will is essential to validity.
http://www.CanadaWills.com
CC,
Think of your Will as having 2 stages (a start and an end) kind of like the binary numeral system (it’s either “on” or “off” – computer saavy engineers understand this – haha):
Stage 1 = Will preparation
Stage 2 = Transfering estate to heirs
Stage 1 can cost up to $150 per Will for a lawyer to prepare.
Stage 2 is the most costly stage should you hire a lawyer and should you require “Probate”. This is because Stage 2 requires paying a % to the Govt. of Ontario as well as a % to your lawyer.
“Probate” basically means proving the validay of one’s Will. Probate is required in Ontario if you plan on transferring title of the decedent’s property to their heirs and/or beneficiaries. If there is no property to transfer, there is usually no need for probate.
In Ontario, Probate fees are paid to the government. The fee structure goes like this –> $5 for every $1,000 up to $50,000 and then $15 for every $1,000 remainder above that.
Estate value of $500k = $7,000
Estate value of $1mil = $14,500
Both payable to the Ontario government (there is no estate tax in Canada – but to me this acts just like a tax – actually double taxation – since the government is actually taxing money that has already been taxed since we are talking about one’s estate (ie. property, money in bank et cetera). Think of Probate as a 1.5% tax they slap on your inheritance in Ontario. Your lawyers will charge you a similar fee for doing the “probating”.
In my case, I didn’t hire a lawyer and it cost me $9.53 to Probate the Will. I saved between $7,000 and $14,000. I wrote 3 letters @ 51 cents a piece) and walked down to the Land Registry office on Elgin St. in Ottawa and payed $8 for a title search on the deceased.
I guess my point to all of this is that I find any “experts”, be it lawyers, politicians, accountants, real estate agents, financial planners, whoever, try to keep things complicated – much more complicated than they have to because that’s how they can justify their fees! Why seek out the complex just for complexity’s sake?
http://www.canadawills.com ?
I prefer the DIY route but I’m kinda leery on that one. The copyright 2000 indicates a lack of effort to keep information updated or refined. Plus the fact that its a “division of Micro-Bite Donuts Inc.” (see Terms and Conditions).
Micro-Bite Donuts… that’s awesome. Maybe it’s just one of those stupid corporation names like Letterman’s Worldwide Pants Inc.
Loki,
For probating, you’ve calculated your return for us: you saved thousands of dollars, but is there any risk?
As far as will preparation there is no write or wrong answer, just one option with a greater risk and less return and another with less risk and greater return.
CC: this post was very timely, my wife and were just looking up some local lawyers today.
I used a product called WillExpert (http://www.willexpert.ca). I completed my will using the program and then took it into my family lawyer prior to signing it to ensure it would be sufficient. My family lawyer said everything looked good and that most DIY will kits would be enough for 80% of Canadians with “simple” wills. I’m not sure what simple meant but I’m confident I was one of them.
Just a tip about probate: It’s pretty common that nowadays any large asset (Home, Policy, etc..) that can be assigned a beneficiary or shared ownership is done to avoid probate fees. Other liquid assets are usually “gifted” since there is no tax on gifts. Take this with a grain of salt as I overheard it at party after having a few…
My in laws did their wills with WillExpert as well and there doesn’t seem to be a problem. I have a will but it is 12 years old and doesn’t even mention my son specifically, oh well, better get that updated!!! –C8j
Dave,
You asked above if there is any risk for probating. In my experience as a first-timer – I minimized my risk just by doing a little reading at Chapters and online.
But technically there is risk in anything you do – whether you do it yourself or hire and “expert”. Lawyers, Accountants, Real Estate Agents, Financial Planners, Renovation Contractors all make mistakes just like you and I.
Probating is just writing letters (plain and simple)- to the Government, to the Banks, etc. Had a lawyer written a few letters on my behalf – would have cost me a % of my inheritance.
I work for Self-Counsel Press, publishers of “Write Your Legal Will in 3 Easy Steps.”
In my opinion, it’s not as simple as saying that all wills kits are unreliable, or that the lawyers are all sheisters out for your money. If you have a complicated estate (for example, if you own a villa in Tuscany, or if you want to specifically exclude your child or wife from receiving anything from your estate) then you should see a lawyer. But if you’re like the rest of us (maybe you own a home, you’re married, have kids and want to bequeath your estate to your spouse and children) then a wills kit can be a good way to go simply because it’s going to save you money. And it really is easy to do.
Whatever kit you buy, just make sure it’s written by a Canadian lawyer. Our wills kits put the lawyer’s name right there on the front cover. I don’t think that’s true for the “Canadian Legal Will Kit.” Some of the “Canadian” wills kits I’ve seen are published by an Australian company! That seems questionable to me. Self-Counsel Press wills kits are written, edited, and published in Canada by Canadian lawyers.
Kevin (above) also makes a good point: Check the copyright date whenever you’re buying a legal kit of any kind. Mind you, the laws for wills haven’t changed in many years. That’s probably because any drastic changes to the laws would render millions of wills out there invalid.
That’s my 2 cents. Thanks for reading.
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I’m a lawyer and agree with the previous comment that a large percentage of do-it-yourself wills aren’t executed and witnessed properly. There are very strict rules with regards to how it must be done. It might seem somewhat stupid at first blush to be that specific on something like that but it is the law. The kits are a cost-effective way of doing a will for basic estates. Just make sure that you check with a lawyer on how they are supposed to be witnessed (you’ll be able to find one willing to answer that quick question for free). Anything complex should go through a lawyer and I would also say to see a lawyer when you have minor children. This isn’t something you want to screw up.
With regards to the previous comment about holographic wills, they are only legal in Saskatchewan so, unless you live there, don’t do it.
Just went to http://www.willexperts.ca website – they are discontinuing their product and telephone support in Jan 2009. Not sure if they are going to offer something else – it doesn’t say – but it has made me think twice about trying their product.
There are very strict rules with regards to how it must be done.
I used an interactive online service at http://www.legalwills.ca it only took about 30 minutes and seemed to cover everything I needed. I don’t like blank kits, but this one seemed to be like an online version of willexpert.
I can assure you of one thing; Intuit’s product Will Expert “SUCKS”!! I have had nothing but trouble with this product and I have seen nothing but bad reviews for Will Expert. Don’t waste your money on this “DUD”!!
Will kits appear to be fine for people with straightforward estates, as long as they are executed properly (in the correct manner and with an appropriate witness). If you want to creat a trust, for example for a child you leave behind, the will kit may not be able to meet your needs. The ones I have seen do have provisions for trusts but they are very basic trusts and don’t give you the ability to have a “custom-made” trust to fit your specific needs (ie. you may want the bulk of your estate to be distributed to your child at a specific age but for the trustee to have the power to use some of the funds before then for your child’s education, travel, etc.). It’s important that your trust be well set out in your will if you want to make sure your wishes are followed in that respect. Another situation I can think of where you would want to see a lawyer is if you wish to exclude a child or other “dependant” from your will. In certain cases, these wills can be challenged and it’s important to have proper legal advice in that regard and a tightly drafted will. The challenge of wills by siblings after the death of their parents or others making claims from the estate is always a very difficult process for those left behind to fight over the estate and often breaks down family relationship. Something to think about.
I agree with Loki, will kits are to a lawyer, what Quick Tax is to an accountant. There is a lot of hype and fear, to get people to use lawyers services, unnecessarily.
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Ok, I’m just looking into getting wills for my husband and I and I don’t even know what having a will executed means. I thought you just needed to have it witnessed but I’m also not sure how that can be done wrong either.
There’s a site called http://www.FormalWill.ca where you create your will online and its available right away. I believe was founded by a lawyer… looks pretty good.
Here is a nice and easy one operated by a Canadian lawyer. And they don’t make you pay until after you have reviewed the Will.
http://www.easywill.ca/
We probated a will for my husband’s mother, 20 years ago – there were 4 siblings inheriting, and no conflict. She died without a will.
My husband’s family were wonderful; reminded me of the Ben Franklin quote: “If you want to know the character of a man, share an inheritance with him”. They were are and kind, honest, giving – luckily as you can only imagine this situation if there was family strife and no will.
Anyway, doing the probate was not complicated or hard. It did involve a lot of paperwork etc. but at that point we didn’t have a kid yet and so we handled it, even with our 2 careers. Had we paid a lawyer to to this, they would have charged 9% of the estate – we got a couple of “bids” for the work and that was their fee, in Ontario.
The estate was about $125,000 (in 1989), split between the 4 siblings. The lawyers would have cleaned up $11,000 of that.
So don’t be afraid of probate and administering a will, it’s not a big deal.
On making wills, same thing – good software/website will work if you just want normal things – to leave you money first to your spouse and then to your kids. Anything tricky, trusts, excluding someone, definitely hire a lawyer.
I am a lawyer too. In reference to holograph wills, they are meant for people on the verge of death who do not have time to get a lawyer or create a proper will. There are cases where a holograph will was deemed invalid because the person died three weeks after making it.
Will kits are widely available and take absolutely no liability for ambiguities or issues that arise as a result of mistakes. Affidavits of execution are rarely executed by the witnesses beforehand which causes a problem in finding them later. Most people are adamant that their simple estate does not warrant more but most people are dealing with assets and real estate of more than twenty thousand dollars which is not insignificant.
Lawyers do not charge a lot for wills. $150 to $300 at most and you are protected even if the will fails. Everyone needs a will and everyone needs Powers of Attorney and should go to your lawyer to get them done. I find that the people who do not make them are usually the people who need them…people with second families or no children or feuding children.
@Gabe, I’m interested in your comment “you are protected even if the Will fails”. What does that mean? can you give an example of how a Will might fail and how in that situation the protection kicks in from the lawyer who wrote it?