FAQs about wills or last testaments
Top 6 questions people have when I prepare wills or last testaments.
1. How many executors can I appoint?
There is no limit to the number of executors you appoint. You can appoint just one with an alternate (in the event the first one appointed can’t fulfill his or her duties). Or you can appoint several. It really depends on how well everyone gets along. If you have three adult children, you can appoint all three. However if one of them lives in Toronto, then you may want to only appoint the two who live close by for practical reasons. The executors have many responsibilities to fulfill. If one of them is located far away, it could make the process more challenging. You should appoint at least two together or one with an alternate.
2. What happens if the person I give my assets to dies before I do?
When lawyers prepare wills or last testaments, we always ask that question. Often, the first beneficiary is your spouse. If your spouse predeceases you, then usually everything goes to the children in equal shares. But what happens if one of your children predeceases you? We don’t like thinking about that, but while uncommon, it does occur. There is no right or wrong way to distribute your assets. However, many people wish that their assets stay within their blood lines, so the children of that child would inherit that child’s portion in equal shares.
But what about the spouse? Some people chose to give the funds to the spouse. However, in theory, that surviving spouse will likely inherit from his or her parents. So they should already be “looked after”.
3. If someone is unhappy about how I distribute my assets, can they challenge the will?
The short answer is no. It is your stuff; you get to decide how to distribute it. If you want to give everything you own to the humane society, that is your choice. There are no provisions for someone else to second guess you. Children and family are not entitled to receive anything by law.
However, if you have capacity issues (for example, if you start suffering from Alzheimers) a third party can challenge the validity of the will. If you make a will when you lack the legal capacity to do so, a court will find the will invalid.
Also, if you make a will under duress, then a third party can challenge the validity of the will. We see this when elderly parents fall under the influence of one child. Sometimes that child will pressure their parent to redo his or her will, leaving everything to that child.
4. Can the executor assist me when I am alive?
No. The executor’s power to manage your affairs only comes into play when you die. Prior to your death, if if you lack mental capacity, the executor remains powerless. If you are alive and you want someone to assist you with your legal affairs or even take over if you loose capacity, you must prepare a Power of Attorney – I discuss the importance of the POA here.
5. Can I get a copy of my will?
No. We don’t provide copies. There is nothing illegal about having a copy, but our office does not provide copies. We don’t provide copies because executors cannot probate copies of a will. The court requires the original. We often get calls from executors asking if we have a copy of their parent’s will because they can’t find the original. Copies that lawyers keep are not legal. They cannot be probated. We must keep copies of documents we prepare to comply with Law Society rules, but they are not legal documents. It is possible to probate a copy, but it is not guaranteed and it can be very costly as you must appear before a judge)
6. Where should I store my will then?
You should store your will in a safe dry place. You can store them in a safety deposit box at the bank, but make sure you have a conversation with your banker about your intentions. Because your safety deposit box belongs to you. The bank will not allow a third party (i.e. the executor) to open the box without proof that party is legally able to do so. The executor’s proof that he or she can open the safety deposit box is the will, which cannot be accessed because the bank doesn’t have proof that you are the named executor… this is a classic catch 22. Every institution has its own rules. So talk to the bank representative.
You can also store it at home with your other important documents. Some people store them in a fire proof box. However, I have had clients advise me that unless you open the box from time to time to allow the air to exchange, condensation can accumulate and destroy the documents inside.
Finally, some law office (like ours) offers their clients the ability to store their will in their office. We have a bank vault we use. The danger with this, is that someday your lawyer may retire, and it may be difficult to track down the will.
Wills, last testaments, and POA (power of attorney) are important legal documents. While sometimes copies will save you or your estate from something entirely different than what you wanted, the law always prefers originals. Keep your documents safe; ensure your executor(s) know where to find them. It’s important that you do not loose your will. If you do, it’s as though you died without a will.
Philippe Richer is President of TLR Law Group. TLR has been located in the St. Boniface neighbourhood, in Winnipeg, since 1996. The office serves the middle class and small business within the province. With a focus on estates, wills, real estate, and corporate law, he leads his team in providing accessible legal services. Philippe also authored the business law course for the Knowledge Bureau and instructed the français juridique class at the faculty of Law at the University of Manitoba.