Writing a Will

[Wormius]

When it comes to guardianship, how does that work? If you have somebody you want to appoint in the case of your death, are your wishes necessarily going to be followed? Assuming the person or persons you selected as guardians are able to, would the government intervene in that at all, especially if the people aren’t next of kin?

Anything special need to be done if desired guardians or next of kin are in another country?

[troutman]

Almost always your choice for guardianship will be respected, but it is always open for an interested party to apply to court and demonstrate that other people should be appointed instead in the best interests of the children. The government would not intervene unless the welfare of the children was at risk. You are not bound to select a relative.

If your preferred guardian is in another country, I recommend appointing a local temporary guardian until the children can be delivered to the permanent guardian.

[bizaro86]

Originally Posted by Wormius

When it comes to guardianship, how does that work? If you have somebody you want to appoint in the case of your death, are your wishes necessarily going to be followed? Assuming the person or persons you selected as guardians are able to, would the government intervene in that at all, especially if the people aren’t next of kin?

Anything special need to be done if desired guardians or next of kin are in another country?

You should also definitely ask the people first before you put them in your will.

[Wormius]

Originally Posted by bizaro86

You should also definitely ask the people first before you put them in your will.

Oh yeah, obviously I wouldn't stick the responsibility of raising children to people who didn't expect or want that.



That said, how should you arrange for new guardians to not be financially burdened by these potential changes to their lives?

[troutman]

Your Will would establish a trust for your minor children - your executor will have discretion to assist the guardians financially.

Arrange life insurance with your “estate” named as beneficiary, then the proceeds will form part of the trust.

[MoneyGuy]

I hereby give permission for anyone who wants to put me into their wills to do so.

[bizaro86]

Originally Posted by Wormius

Oh yeah, obviously I wouldn't stick the responsibility of raising children to people who didn't expect or want that.



That said, how should you arrange for new guardians to not be financially burdened by these potential changes to their lives?

I bought life insurance, and then my lawyer had it written into the will that if we both die the money goes to the upkeep of our kids. IIRC it was held in trust with payments regularly, and then anything left goes to the kids once they're adults.

Edited to add: what troutman said

[bizaro86]

Originally Posted by MoneyGuy

I hereby give permission for anyone who wants to put me into their wills to do so.

As guardian of their children?

[Fuzz]

Originally Posted by MoneyGuy

I hereby give permission for anyone who wants to put me into their wills to do so.

Done! You get my pile of clay. Fell free to pick it up before my death if you like.

[MoneyGuy]

Originally Posted by bizaro86

As guardian of their children?

Just the money, no kids; I’ve put in my time.

[Slava]

Originally Posted by troutman

Your Will would establish a trust for your minor children - your executor will have discretion to assist the guardians financially.

Arrange life insurance with your “estate” named as beneficiary, then the proceeds will form part of the trust.

I don’t know about having the life insurance with “estate” as beneficiary. One of the main benefits of life insurance is that it goes to the beneficiary outside of the estate. That can be particularly important if the estate could face challenges or be held up in the process. Life insurance gives the beneficiary (or beneficiaries) liquidity, which might be important as well in those situations.

[troutman]

Originally Posted by Slava

I don’t know about having the life insurance with “estate” as beneficiary. One of the main benefits of life insurance is that it goes to the beneficiary outside of the estate. That can be particularly important if the estate could face challenges or be held up in the process. Life insurance gives the beneficiary (or beneficiaries) liquidity, which might be important as well in those situations.

Outside the estate means they get it when they are eighteen, outside the control of your trustee. Most parents would rather delay this inheritance until an age where they are more mature.

Probate can get done in Calgary currently in two months. No inheritance tax, and maximum court fee is five hundred dollars. The estate is getting probated anyway if there is real estate or investments. The bank should allow a limited estate account to pay immediate expenses until probate is complete.

[Manhattanboy]

This may be more than a freebie legal question Trout but wondering what the best way is to structure a conditional gift such that it only applies upon the happening or non-happening of an event. Eg the gift applies only so long as the beneficiary is not married to or does not live with a certain person. I seem to recall back in law school something about those kinds of gifts failing because the testator cannot “speak from beyond the grave”. But surely there is a way to provide in a will for this kind of gift. Thanks.

[GGG]

Originally Posted by Manhattanboy

This may be more than a freebie legal question Trout but wondering what the best way is to structure a conditional gift such that it only applies upon the happening or non-happening of an event. Eg the gift applies only so long as the beneficiary is not married to or does not live with a certain person. I seem to recall back in law school something about those kinds of gifts failing because the testator cannot “speak from the grave”. But surely there is a way to provide in a will for this kind of gift. Thanks.

I can’t answer your question but if you made this type of condition in your will would you tell the person that the condition existed as a means to try to influence their decision? Or is this a screw you from beyond the grave where you get one final judgement on the persons life choices?

[Manhattanboy]

Originally Posted by GGG

I can’t answer your question but if you made this type of condition in your will would you tell the person that the condition existed as a means to try to influence their decision? Or is this a screw you from beyond the grave where you get one final judgement on the persons life choices?

Not sure. It’s kind of hypothetical at this point. But it seems that this would be a fairly common issue - say where a parent seriously disagrees with the choices of an adult child. My case applies to a sibling. Although that’s probably a distinction without a difference.

[troutman]

What limits can be put on testamentary freedom are fact dependent, and may be difficult to predict.

http://disinherited.com/keeping-will-court/

12. CONDITIONS AGAINST PUBLIC POLICY
There are many conditions that in the interest of the public, or the Crown, that may be said to be against public policy. The conditions may vary over time, but generally speaking, conditions that offend the law, or are an unreasonable restraints on marriage, or a condition that attempts to avoid the Wills Variation Act, or is racially offensive, may be void. Some conditions that were formerly held to be void, may now be allowed, and vice versa. This is simply because of changes of public opinion over time, which the Courts attempt to reflect.

https://www.millerthomson.com/en/pub...y-constraints/

Courts have also intervened where a testator attaches conditions to a gift that are void as a matter of public policy. These include:

Conditions in restraint of marriage;
Conditions that undermine the parent-child relationship by disinheriting the child who resides with a parent;
Conditions that disinherit a beneficiary based on religious faith; and
Conditions that require or encourage a beneficiary to commit a crime or perform an act prohibited by law.

[Wormius]

That’s interesting.

So somebody writes a Will with a condition that as long as Person A didn’t marry Person B, they would receive X amount of money.

If this condition isn’t valid or allowed, would the courts still award the inheritance to Person A regardless of marital status, or say that the condition isn’t valid and strike out that part of the Will altogether, but Person A doesn’t receive an inheritance.

[Manhattanboy]

I think it is established that conditions in restraint of marriage generally or to a person of a particular faith would be void as against public policy. What if the testator really disliked his possible future son in law to the extent he is prepared to disinherit his daughter?

[Wormius]

I guess what I was getting at was, if this person was promised in the Will that they would receive a specific heirloom provided the condition were met. If the condition wasn’t reasonable or “enforceable” what would the outcome be? Would the person receive the heirloom regardless of the conditions placed upon it or would it just go to the other beneficiaries as if those instructions didn’t exist for the item.

[VladtheImpaler]

Originally Posted by troutman

Outside the estate means they get it when they are eighteen, outside the control of your trustee. Most parents would rather delay this inheritance until an age where they are more mature.

Probate can get done in Calgary currently in two months. No inheritance tax, and maximum court fee is five hundred dollars. The estate is getting probated anyway if there is real estate or investments. The bank should allow a limited estate account to pay immediate expenses until probate is complete.

Correct me if I am wrong, as it has been years since I thought about this, but I believe if the "Estate" is the beneficiary of an insurance policy, the insurance proceeds are taxable income for the Estate and the Estate will have to pay tax on the proceeds. If you name an individual as the beneficiary, the proceeds are not considered income. Or am I old and confused?