All About Estates

“I’ve signed my Will…now what?”

You’ve met with your client for a final signing meeting. They can breathe a sigh of relief – their Will (or Wills) and Powers of Attorney are done!

I have bad news – the process isn’t quite done yet. Of course, you will prepare a reporting letter,  send your final account, and, if you store original documents, ensure the documents are safely stored and that your database is updated accordingly.

What is sometimes a surprise to clients is that their part of the process also does not end with the execution of documents. I recommend the following to clients when we meet to execute their documents (some of these points are also reiterated in our reporting letter):

  1. Consider Will storage and access

Some firms and practitioners store originals of client documents. If this is your practice, you should advise your client to let the attorney(s) and executor(s) named in their documents know that they have had new documents prepared, that the individual(s) is or are named, and that they should contact you or your firm if anything happens to the grantor/testator.

If it is your practice to send original documents to the client for storage, you should provide them with some guidance as to how they are best stored. Clients often ask me if documents (whether original or copies) should be stored in a safety-deposit box, and I always advise against this, as it can be nearly impossible to get access to a safety-deposit box after the holder’s death without probate. Instead, clients may wish to purchase a home-safe to ensure the documents are kept private, and are protected from fire or water damage. At the very least, they should be maintained somewhere secure and dry. Wherever the documents are stored, the named attorney(s) and executor(s) should be advised of their existence and location and should have instructions on how to access them.

A question related to the issue of storage and access that I am frequently asked is, “Do I have to give a copy of my documents to anyone?”. I advise my clients that no, they do not have to give a copy of an executed Power of Attorney (POA) or Will to anyone, with an important caveat – in Ontario, per the Substitute Decisions Act, attorneys acting under a POA for Property have a duty to make reasonable efforts to determine whether an incapable person has a Will, and what the provisions of the Will are, to ensure that they are completing their duties in a manner that is consistent with the grantor’s testamentary wishes.

While there is not a requirement to share the contents of their Will(s), the client may wish to have a general discussion with the beneficiaries named in their Will(s), if they have not already done so as part of the planning process, particularly if the estate distribution may not be as the important individuals in their life expect. A conversation while the testator is alive, while not required, may help stave off challenges to the Will or claims against the estate following death.

  1. Make the Executor’s job easier

I recommend to clients that if they have not already done so, they consider compiling a list of their assets, liabilities, various accounts, and the important contacts in their life (e.g. accountant, financial advisor, lawyer), and maintaining this list in a safe place (perhaps with their documents) to make the job of their attorney(s) and/or executor(s) easier. This is particularly relevant in the current age, where many individuals maintain online accounts for everything from their banking to their TV subscription services. Having all of this information in one place can allow an individual who is stepping into the role of attorney or executor to skip a certain amount of the “fact-finding” portion of their role, and begin to administer things quickly. I do caution clients that this list should be carefully managed to ensure that it does not have enough information to allow for nefarious use – for example, they may want to use a password manager tool, rather than including password information as part of their list.

  1. Update advisors

If they have not otherwise been involved in the process of preparing the documents, clients may wish to inform their other advisors (e.g. financial advisor, family lawyer, insurance agent, accountant) of the existence of their new documents. For some professionals, this information is part of their “know your client” responsibilities, so they may otherwise ask. It can also be helpful for these individuals to also know of the existence and location of these documents, should anything happen to the grantor/testator and for some reason the attorney(s) or executor(s) is or are not able to locate the documents. Some clients like to share the contents of these documents with their advisors, though again, I advise that this is not required if they do not wish to do so.

I always caution clients that if they have included any beneficiary designation in their Will (i.e. for a registered plan or insurance), that they should be careful not to sign a new beneficiary designation form with the issuing institution, as this will override the designation included in their Will. I tell them as much even where the form indicates “per Will” or similar. However, they may still wish to advise their relevant advisor of the existence of this new designation made by Will so that the advisor can note it in their records. Similarly, if a client has executed a new POA for Property, I caution them against signing any document at a financial institution that purports to be a POA, even if only over a specific account, without further advice, as it may inadvertently revoke their existing POA for Property.

  1. Revisit your POAs and Will(s) periodically

Finally, I remind clients that it is important to review their planning on a regular basis, to ensure that it reflects their current family status, financial situation, and overall wishes. While it may be disappointing to learn that a document that is titled  “Last Will and Testament” may not actually be the last Will they have prepared, it is important that clients know that changes to their family status may give rights to certain individuals that should be considered in their estate plan. Similarly, you should advise clients that changes to their asset holdings may warrant a revisit of their planning to ensure that any tax planning you have done for them is still effective.

About Emily Hubling
Emily Hubling is an associate in the Trusts, Wills, Estates and Charities group at Fasken. Emily has experience in advising estate trustees in administering a range of complex estate matters, including intestacies, cross-border matters, and contested estates. Working closely with clients’ advisors, Emily prepares Wills, Powers of Attorney, and Trusts to assist clients in fulfilling their unique estate-planning objectives.

2 Comments

  1. Tom Pahapill

    October 8, 2021 - 1:11 pm
    Reply

    Thanks Emily. Well written.

  2. Larry Amstutz

    October 8, 2021 - 2:10 pm
    Reply

    Very good article.

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