An Interview with Bethany Anderson
We get a lot of questions about wills and estate planning. We decided to ask Bethany Anderson, who heads up our Estate Planning department, some of the most common questions…
Q: What are some of the things people need to think about when they’re doing their estate planning?
Bethany: Here are some general first steps to consider that (among other things) your estate planning lawyer will want to ask you about in your first meeting. I like to provide my clients with a worksheet before our first meeting, so that they can gather information to discuss with me.
- Make a list of assets and their values, including whether you own them in your own name, jointly with someone else, or as tenants in common.
- Do you have registered assets like RRSPs or TFSAs? Do you have life insurance? Have you named designated beneficiaries to receive these plans/policies?
- Your lawyer will ask you about your family relationships, and putting together a list of the full names of people in your family and their birthdates is helpful. Where does everyone live? Is anyone the citizen or resident of another country?
- Start thinking about who you trust to be your executor (or “estate trustee” in Ontario) and alternate(s). This might be one person, a couple of people acting together, or possibly a trust company or professional trustee. Appointing an alternate is a good idea as well.
- If you have minor children, who would you like to appoint to be their temporary guardian if you were to die before they reach the age of majority?
- Are all of your beneficiaries adults and old enough to manage their inheritance? At what age (over 18) would you be comfortable with them receiving their inheritance with “no strings” attached?
- Do you have a blended family? Do you have a cohabitation agreement or marriage contract? Let your lawyer know this before your appointment, as there may be a conflict of interest for the lawyer to work with both of you.
- Who would you trust to help you with your assets if you become incapable of managing property during your lifetime?
- Who would you trust to make personal care (like medical treatment, retirement homes, etc) decisions for you if you become incapable of making those decisions yourself?
Q: What’s the process involved if somebody wants to get a will done or changed?
Bethany: If you are meeting with us for the first time, whether you have a Will already or not, we will have an initial consultation during which I will ask you about your family and your assets, so that I can advise you properly. This consultation takes approximately an hour (sometimes a little bit longer). I ask clients to provide me with an asset list and some family information prior to our meeting, so that I have an idea about at least some of the issues we will discuss ahead of time. We also go over the relevant legal and practical issues, your instructions, and we talk about the ways we can accomplish your goals
After the consultation, I will prepare a memorandum outlining some of the issues we discussed and your instructions to date, along with any “homework” pieces that you may be considering. I usually have enough instructions from my clients at this stage to also prepare draft Wills and Powers of Attorney with a few open questions embedded.
When you have reviewed your drafts, we go over any questions or changes, and after some back and forth, we are ready to meet again for a detailed review of the documents, and signing. We then prepare affidavits of execution for each of the documents, and a reporting letter to you. Within a week or so, we provide you with a package including all of your original documents for your safekeeping.
When a client wishes to change their Will, if we drafted your previous one, I usually meet with you more briefly to discuss the changes and the reasons for those changes, and will let you know if we see any risks or concerns with the changes (and to discuss any life changes that may have occurred since the previous Will). I will prepare the revised draft along with a short memorandum outlining the changes made, and we will meet to review the changes and sign.
When someone wishes to change their Will, if that Will was drafted by a different lawyer, the process involved will be much like the process for preparing a new Will.
Q: What are some of the mistakes you’ve seen people make when planning their wills?
Bethany: I often review clients’ previous Wills, and have unfortunately see a lot of mistakes or missed issues. Be careful that the person preparing your Will works primarily as an estates lawyer and isn’t dabbling. Other than drafting mistakes, which are common especially a Will was not drafted by an estates lawyer, the other mistakes that are common (and can be costly) include:
- Failing to consider (or understand) family law rights and obligations when making a Will, especially in blended family situations.
- Failure to change a Will after marriage or separation.
- Failure to protect a beneficiary with special needs.
- Appointing an estate trustee who is not resident in Canada (without understanding or accounting for the potential problems).
- Misunderstanding of tax treatment of your assets on death (RRSPs, in particular)
- Some Wills (especially “do it yourself” ones) lack provisions that are important for estate trustees. Wills should include provisions that provide clarity for Trustees and help them avoid headaches or confusion (which can lead to litigation). When people say they want “simple” they often mean “short”. A “simpler” administration after the person’s death is much more important than having a very short Will. Seeking directions from the Court after your death because of missing provisions takes time and can be very costly.
- Issues around ownership in family businesses
Q: Of all the legal services out there, wills seems to have the broadest price range – I’ve seen wills advertised as low as $100 and I’ve known them to be priced many thousands of dollars higher. What’s that about?
Bethany: There is a perception out there that “making a Will” is just about inserting some names and signing papers. If that’s the service being offered, I wouldn’t want to pay very much for it, either.
An estate planning lawyer’s job is to not just to be a scribe. It is to provide clients with legal advice and options to consider, not only a final product. Preparing a Will with a lawyer should be a process. An estate planning lawyer will consider clients’ personal circumstances, assets, and goals, and apply their knowledge of estates law, trusts, taxation on death, and family law. Everyone is different – some people have corporations, cottages, shared interests with other family members, children with special needs, many have blended families, or adult children from prior relationships. An estate planning lawyer should know and consider all of these things. They will have questions and solutions to problems that the client may not have known to ask. They also consider the role of the estate trustee and practical issues that may follow your death. The end result is a document that reflects the client’s needs and circumstances and that is carefully drafted, but the process is the most important part.
As we know, lawyers typically bill based on time. When I’m working with clients, I usually spend at least an hour in a first consultation, then there is significant drafting time. Meetings or calls follow, and finally, I review documents with my clients to ensure they understand what they are signing and that it is all correct. It takes time and expertise do things properly. In our firm, we bill based on time. If a lawyer chooses to charge a flat fee, it will be based on the work they plan to do and the services they plan to provide (nothing is free). When someone says they charge $250 for “a Will”, It comes down to the old adage: you “get what you pay for”. If a lawyer is preparing Wills for $250, and their hourly rate is $350 for everything else, I would have a lot of questions.
I would strongly recommend that people ask what estates planning services will include, and not just “how much will it cost”. It is up to a client to determine what level of service they would like to have, but if estate planning services do not include legal advice, I’d be wary at any price.
If you have any questions for Bethany please don’t hesitate to ask. You can reach her clerk, Laura Rosati, at email@example.com.