Making a will | Page 2 | General financial discussion | Discussion forum

Bill said
I've drafted my and my spouse's Wills, properly witnessed, easy as all just goes to the other, we're good. But now I'm thinking how to make it easier and quicker for my wife/executor (who avoids all financial/legal matters if she possibly can) to get at the non-registered financial assets solely in my name, namely my own HISAs and GICs at online banks plus non-registered big-bank discount brokerage accounts. Wife will have help in her executor duties, just trying to simplify, if I can.

Question to anyone who might have some knowledge: In order to avoid probate process (I don't care about the fees/tax, it's the headache of getting a lawyer to file docs plus waiting a long time maybe) would it be beneficial to get Wills drafted by a lawyer? Or would it make no difference (i.e. online banks and discount brokers will insist on probated Will whether it's homemade or pro-prepared)?

Thanks.  

One needs to remember it is not governments that necessarily insist on probate through the court system. They simply provide the process and fee schedule that must be followed for a Grant of Probate. It is the institutions that hold the assets that may insist on probate for the Executor to provide direction to the institution to disburse the assets.

A bank or brokerage is: 1) likely going to look more favourably on a properly drafted Will and may insist on a notarized copy of same to release assets, 2) may only release assets if they see evidence of a Will search to be more sure the Will presented is the last one, 3) may only release assets if the Executor and beneficiary are one in the same, 4) how well the institution knows either the deceased account holder and Executor, and 5) in any circumstance may only release assets if the amount is small, e.g. $20-30k, to minimize their liability in the event the Will is contested and/or the institution has been fleeced/de-frauded by a phoney Executor.

The real point here for the institution is liability risk and what I aforementioned are the things my own sons in their managerial capacities in bank branches consider when making a decision regarding the need for a Grant of Probate. The amount of assets they are willing to release without probate takes into consideration all of the above factors.

AFAIK, real estate is a tricky one. Many(?) jurisdictions will insist on a Grant of Probate before changing land title on singularly held, but obviously not joint tenancy, assets.

To respond directly to Bill though, it will most likely be a certainty that a Grant of Probate will be required. The list of accounts and assets he has provided will guarantee it.

It most likely won't matter too much if the Will is homemade or done by a lawyer if it is straightforward with the Executor and beneficiary such as a surviving spouse being one and the same, and the Will is duly registered if that provision exists in the province of residence. In BC, there is a Wills registry and that would go a long way to 'determining' the likely legitimacy of the presented Will to simplify probate.

Once the Grant of Probate is received, it is a matter of the Executor slogging through the paperwork providing Letters of Direction along with copies of Grant of Probate and Will to each institution where assets are held to have the funds released.

Not sure if right place to ask,

If house is joint tenant, but I specify 50/50 split (wife and kid) in the will (did not specify what assets), is the house still go to the wife, and rest of asset go 50/50 to wife and kid ? Just want a simple will and want house to go to wife so at least that asset is tax shielded.

Bill said
If wife owns house with you in joint tenancy she will own the house 100% the moment after you die, your interest doesn't really form part of your estate, no income tax implications. The remaining assets will be split 50/50, if that's what the Will specifies. Is my understanding.

In any event, you can always make your intentions with regard to specific assets very clear in your Will.  

Thanks Bill. Same thing applies to all joint accounts with wife I suppose ? Those are also NOT part of my estate either ?
I am looking to use the law depot version and just need a simple one.

Make sure the house or accounts are joint tenant and not tenants in common. If registered as joint tenant, also that the joint tenancy hasn't been severed.

Some details are in Financial Post (July 17, 2019): Joint tenants or tenants in common? …

AFAIK, it is only BC which does not require Affidavits of Execution. Those doing DIY online Wills often forget about this 'desirable' requirement. Otherwise, Executors run into the type of difficulties pointed out in post #31 and what I had to pursue in Alberta on my mother's estate. We got lucky. One of the witnesses was still alive though feeble with oxygen and a cane.

Having trouble to remember, whether the other half of the house passes to co-owner or to the estate?
If wife is JointTWROS ..., she gets to keep the 'joint'.

julio said
Having trouble to remember, whether the other half of the house passes to co-owner or to the estate?
If wife is JointTWROS ..., she gets to keep the 'joint'.  

Haha... but the real phrase is 'joint tenancy' with an undivided interest.