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How to make my wife my trustee / estate / beneficiary
November 8, 2017
4:42 pm
Save2Retire@55
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Hello, I know many people at my age (early 30s) don't even think about this but I'd like to make sure my family will be able to access our money in case of my sudden death. I tried to add my wife on every account as the beneficiary or whatever available status. However, there are some accounts (specially in Quebec) with different rules and as I have many accounts (Both registered and non-registered) and always open new accounts whenever I see opportunity (good interest rates), I wonder how to make sure I won't miss out on an account.

Basically, I'd like to make sure my money goes to my wife and 2 children after my death. Of course preferably by paying as little tax as possible.

Also, as everything is online. I have a complete and safe document with all the required information on how to access the accounts even if I wasn't alive (to transfer, etc) but that might raise legal issues and also there might be limitation.

Can I have a will that works all over Canada to cover this? If so, do I need to go to a lawyer or I can just write it myself, sign in front of witnesses and maybe legalize by a lawyer? I tried to find the answer online but there isn't a complete answer.

Thank you

November 8, 2017
5:02 pm
AltaRed
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There's actually two issues. One is if you become mentally incapacitated and cannot function for yourself, and the other is what happens upon your death.

The first issue is handled by what I call an Enduring Power of Attorney giving your spouse full legal and financial rights over your affairs (as your Attorney), or you can word the POA to only handle specific things. You need a lawyer, maybe a Notary in Quebec, to develop the proper form of this to ensure it conforms to provincial law and thus must be accepted by all institutions both in one's home and other provinces. There are various types of POA so be sure to discuss with your lawyer.

In most provinces (don't know about Quebec), you should have a Will drawn up professionally by a lawyer (or Notary Public?) to ensure all the appropriate provisions are in there, including guardianship of your children should both you and your spouse flame out in an accident, downed plane, etc. You could draw up a Will by yourself and get it witnessed (maybe not in Quebec?) but I doubt you will cover all the key terms that need to be covered properly. It just is not worth skimping on $500-$1000 to have a poorly drawn up document.

And of course, your spouse needs to have the same documents as well.

November 8, 2017
5:13 pm
Save2Retire@55
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Great points about the mental disability and guardianship. If I understood correctly, we need to have both Power of Attorney and a Will to cover all scenarios.

Nobody knows where they will die but I know the money is in Canada with most banks' main HQ in ON or Quebec so it needs to be valid in Canada.

I've never dealt with lawyers so that's another thing I need to look at to get this sorted out.

November 8, 2017
6:30 pm
Norman1
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In theory, one could do it yourself. Farmer Cecil Harris did when he was pinned under a tractor and wasn't sure if he would survive. See Global News: Dying Saskatchewan farmer’s will goes down in history.

However, I think it would be better to see a lawyer to get advice and to write up the will.

Wording is important. Should the wording be vague, one won't be around to clarify.

Estate law is complex. For example, the surviving spouse can decline what is given under the deceased's will and instead file for what he or she would be entitled to under a divorce.

Certain assets in another province will require re-sealing of probate in that province. Newfoundland lawyer Lynne Butler noted in What is "resealing" probate? that a Grant of Probate from an Alberta court is not sufficient to transfer land in Ontario. That Grant of Probate from Alberta would have to be taken to a court in Ontario and "resealed" there.

A lawyer would be able to provide advice on those matters.

November 8, 2017
7:01 pm
AltaRed
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Save2Retire@55 said
Great points about the mental disability and guardianship. If I understood correctly, we need to have both Power of Attorney and a Will to cover all scenarios.

Nobody knows where they will die but I know the money is in Canada with most banks' main HQ in ON or Quebec so it needs to be valid in Canada.

I've never dealt with lawyers so that's another thing I need to look at to get this sorted out.  

And in most, if not all, provinces, a health directive (different names in different provinces) about who makes life decisions for you (health, where you would live, etc) and what your wishes would be in certain circumstances, e.g.'not to be kept alive by artificial means', etc. These directives are highly effective in end-of-life situations. Two years ago, it came into play very effectively with my mother... in terms of how the hospital/doctors dealt with the last few days of her life.

November 8, 2017
7:52 pm
Save2Retire@55
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More great inputs. Thank you so much both and RIP to your mother AltaRed.
I really never thought about those health related situations.

November 8, 2017
8:12 pm
Bill
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Your Will, if properly done, will "work" in all of Canada, as far as I know.

There are "official" provincial POA kits available - for example here's a link to Ontario's, both for property and personal care:
https://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/poakit.php

There are also lots of sample Wills online, you can review them and figure out what common wordings there are and write your own. There's also info online about Will witness rules. Reading enough samples of Wills and the POA kits will give you a good idea of what needs to be covered and how to construct your own documents.

I'd be more concerned about documenting in Wills or POA's who's agreed to raise your kids, and how they're going to be compensated vs what's going to be left to your kids when they're adults, if you and the wife both die or become incapacitated.

If you die without a Will your province of residence determines who gets your assets and in your case in some form or another it would all go to your wife and kids, whoever's still alive. But in your case, with minor children, I don't think it's a good idea to die without a Will.

If your situation is straightforward then you can easily do your own, with a bit of research, time and effort. I've always done my own and my spouse's.

I'm giving you these ideas because I'm pretty sure most of the advice you get here will focus on all the possible problems writing your own documents might cause (and that advice is good, I'm not saying they're not legitimate concerns) but it's my view that if your situation is pretty straightforward and there aren't other relatives in the shadows that you think might step forward and declare you told them they were getting your assets then you might consider, just consider, that it's quite possible to do your own. But for sure, if you're not up to doing your own research and legwork, etc, by all means go to a lawyer. Again, my priority in your case would be guardianship of the kids and what portion of your assets go to the guardians for raising them vs what's to be left from the estate for the kids own use when they turn 18. (Naturally, make sure ahead of time the potential guardians are on the same page as you.)

I trust if I gave some bad advice here I'll be corrected - thank you in advance!

November 8, 2017
8:41 pm
AltaRed
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Helpful link.... http://estatelawcanada.blogspo.....-will.html

In some provinces, Alberta for sure, the witnesses sign an Affadavit that they believe the person signing the Will was of sound mind when the Will was made. In my mother's case, there were so such Affadavits when the Will was signed/witnessed in the 1970s. Fortunately, our probate lawyer was able to track down the original lawyer now in his 90s and using a walker who was able to stll sign an Affadavit on same. Otherwise, we would have had to go to court and present other people who could testify as to her sane mind back in the '70s .

Everything seems easy...... until it isn't. Don't underestimate the hurdles and hiccups that can be obstacles.

November 9, 2017
3:03 am
Loonie
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I have never lived in Quebec, but I visit there often and have friends there, and 2 friends who are members of the Quebec bar. I have only discussed these issues with them in a very casual way, just enough to know that things are different there.

Quebec law is different from the rest of the country. As I understand it, it has something to do with the Napoleonic Code, which is the foundation of some QC law, just as the common law is the foundation of much British law that we are familiar with. Law school takes an entire extra year in QC because of this. I know it affects marriage rules, and i think it affects wills.

In any event, if I lived in Quebec, I would most definitely consult a local lawyer.

November 9, 2017
8:41 am
AltaRed
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The OP hasn't exactly said that province of his/her residence is Quebec, but has said that some (majority?) of the institutions have HQs in either ON or QC. That is a different issue than province of residence and thus the province in which documents such as Wills, POAs and personal directives are written. The OP might clarify that point such that responses are better targeted.

FWIW, my wife's sister moved from QC to BC a few years ago. She was told by a BC lawyer that her Will remained perfectly valid in BC and didn't need to re-write it, but that she should re-do her POA and personal directive because it is much better for the POA (Attorney) to reside in the same province as the grantor of the POA, and similarly for health institutions. It made no sense for her POA to be trying to manage her affairs from Montreal.

FWIW2, I have re-done my Will, POA and health directives every time I have moved from one province to another. It simply makes it much easier to deal with the applicable authorities (courts, etc.) if they are familiar with the form of documents for that province. It is circa $1000 of money worth spent, e.g. comparable to the price of a bleeding edge smartphone. That is a personal choice of course but I'd much rather have peace of mind than a stupid new smartphone.

November 9, 2017
2:28 pm
Norman1
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Loonie said
Quebec law is different from the rest of the country. As I understand it, it has something to do with the Napoleonic Code, which is the foundation of some QC law, just as the common law is the foundation of much British law that we are familiar with. Law school takes an entire extra year in QC because of this. I know it affects marriage rules, and i think it affects wills.

Québec has a civil law system in contrast to the common law systems of other provinces.

Under civil law, court rulings aren't binding on subsequent cases. Under common law, a court ruling binds judges in subsequent cases unless the ruling is overturned by a higher court. The principle is called stare decisis.

Most of the differences in Québec aren't because of their civil law system. It is because Québec has different laws.

November 9, 2017
3:31 pm
Save2Retire@55
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Bill said
Your Will, if properly done, will "work" in all of Canada, as far as I know.

There are "official" provincial POA kits available - for example here's a link to Ontario's, both for property and personal care:
https://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/poakit.php

it's quite possible to do your own. But for sure, if you're not up to doing your own research and legwork, etc, by all means go to a lawyer. Again, my priority in your case would be guardianship of the kids and what portion of your assets go to the guardians for raising them vs what's to be left from the estate for the kids own use when they turn 18. (Naturally, make sure ahead of time the potential guardians are on the same page as you.)

I trust if I gave some bad advice here I'll be corrected - thank you in advance!  

Bill - Honestly, yes I am always up to doing what I can on my own by doing enough research and spend some time. That's why I have never had to deal with lawyers before. Maybe it is also because my life is not that complicated.

So yes my situation is straightforward and I am sure no one is going to say anything against my will. Also having it witnessed properly will reduce the odds.

Using a lawyer will raise another issue. Will I need to pay the same (at least $500) whenever I want to update it? And certainly the main concern is who is going to take care of the kids and I am really not sure how to sort the financial part. I also don't think it is a good idea to give them power over whatever left when they are 18. Usually 18 without parents and money doesn't really sound / end good.

Thanks for sharing the link. I will read it this weekend.

November 9, 2017
3:38 pm
Save2Retire@55
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AltaRed said
Helpful link.... http://estatelawcanada.blogspo.....-will.html

Otherwise, we would have had to go to court and present other people who could testify as to her sane mind back in the '70s .

Don't underestimate the hurdles and hiccups that can be obstacles.  

Great link and information. This sounds the Will needs to be signed every couple years by younger generation / more accessible people. How many witnesses need to sign to comply with the law (without involving a lawyer)?

November 9, 2017
3:41 pm
Save2Retire@55
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Loonie said
I have never lived in Quebec, but I visit there often and have friends there, and 2 friends who are members of the Quebec bar. I have only discussed these issues with them in a very casual way, just enough to know that things are different there.

Yes I currently live in Quebec and you are correct about the difference in the rules and laws. However, I don't intend (and I know it is not a choice) to die here. Mostly here for the kids to be fluent in French before moving.

November 9, 2017
3:49 pm
Save2Retire@55
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AltaRed said
The OP hasn't exactly said that province of his/her residence is Quebec, but has said that some (majority?)

FWIW2, I have re-done my Will, POA and health directives every time I have moved from one province to another. It simply makes it much easier to deal with the applicable authorities (courts, etc.) if they are familiar with the form of documents for that province. It is circa $1000 of money worth spent, e.g. comparable to the price of a bleeding edge smartphone. That is a personal choice of course but I'd much rather have peace of mind than a stupid new smartphone.  

Yes, I am in Quebec but I intend to move out in couple years.

Exactly what I am thinking. Will needs to be done not just because of the regulations but the accessibility of the witnesses / lawyers in case their presence was required.

Yeah - Stupid smart phones and yeah $1000 was before. The new iPhone is selling for $1500 CAD and I think most of the buyers are young generations who don't even have $1000 in their saving accounts. Another sad story.

November 9, 2017
4:05 pm
Save2Retire@55
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I got my answer about the witnesses referring to http://estatelawcanada.blogspo.....-will.html
However, I need to check more with the local laws too:

"A Will has to be signed by the testator in front of two witnesses who both watch him or her sign. Then the witnesses both sign in front of the testator and each other. Later, one of the witnesses must sign an Affidavit stating that all of the proper formalities of Will signing were followed.

A holograph Will that is 100% in your own handwriting does not need to be witnessed (make sure you date it and sign it though)."

The question would be, how will they know my handwriting when everything is digitized these days and I can't really remember writing down anything on a paper for a very long time! A law that needs to be updated. Maybe we need some sort of E-Will service that allows us to sign a will electronically and save / update it whenever required using digital signatures / identification.

November 9, 2017
4:21 pm
Bill
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Save2Retire@50, here's another link that gives info re Quebec:
https://www.educaloi.qc.ca/en/capsules/wills

It'll answer your questions about witnesses.

I'm guessing you can stipulate in your Will that the kids' inheritance amounts stay in trust until an age you specify, but I'm not 100% sure. But maybe it's not an issue, at age 18 their guardians will have been their "parents" and likely will continue to act as such for a while longer at least. That's one reason it's very important who you pick as guardians and that you feel confident you've come to a common understanding with them about the use of the estate assets. The assets will stay in trust for the use of and inheritance by the children - it can be a idea to make the trustee of the trust someone other than the guardian, if you want to make sure appropriate amounts go to the guardians for raising the kids and also leave enough for the kids to inherit as adults.

November 9, 2017
4:34 pm
Save2Retire@55
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Bill said
Save2Retire@50, here's another link that gives info re Quebec:
https://www.educaloi.qc.ca/en/capsules/wills

It'll answer your questions about witnesses.

I'm guessing you can stipulate in your Will that the kids' inheritance amounts stay in trust until an age you specify, but I'm not 100% sure. But maybe it's not an issue, at age 18 their guardians will have been their "parents" and likely will continue to act as such for a while longer at least. That's one reason it's very important who you pick as guardians and that you feel confident you've come to a common understanding with them about the use of the estate assets. The assets will stay in trust for the use of and inheritance by the children - it can be a idea to make the trustee of the trust someone other than the guardian, if you want to make sure appropriate amounts go to the guardians for raising the kids and also leave enough for the kids to inherit as adults.  

Another great idea but a little bit complicated as the guardian will be my in laws who are a US residents. Need to first decide on who be what first. I think that's the most important and difficult part.

November 9, 2017
5:17 pm
Save2Retire@55
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Referring to https://www.educaloi.qc.ca/en/capsules/wills

It seems that having a "Notarial Will" will end up cheaper than Holograph Will or Will in Front of Witnesses.

A Notarial Will might cost up to $1000 but there is no need to do anything after death as it is valid already. However, for the other 2, it must be probated by the court or a notary at death which can cost $1500 + Headache!

November 9, 2017
9:50 pm
Norman1
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A Québec notarial will doesn't require probate in Québec only.

It does not automatically have same status as a probated will of another province before it is probated in that province: Probate of a Quebec Notarial Will in Ontario from Sharon Davis of Ontario law firm Hull & Hull LLP.

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