The following are some issues to consider in planning your Wills:

Choice of Executor

Below are some issues to be considered in choosing an executor, who is responsible for administering the estate after death:

Appropriate characteristics – trustworthy, financially astute, detail-oriented, comfortable dealing with professionals (See Duties of an Executor)
Alternate executor if the first named executor dies or becomes incapacitated
Age of the executor and likelihood of the executor outliving the beneficiaries
Residence of Executor – if the executor lives outside a Commonwealth jurisdiction, the executor may have to post a bond to act. If the executor lives outside of Canada, tax implications need to be considered especially if a trust is established in the Will
Compensation of the executor – generally, an executor is entitled to a percentage of estate assets that are brought into the estate (2.5%) and a percentage of the assets when they are distributed to the beneficiaries (2.5%). The Will can change this by stipulating that no compensation is to be paid to executors or that a cash gift is to be paid to the executor

Personal Effects

Below are some ways in which personal effects (including furnishings, art, jewellery, cars, musical instruments, clothing) can be dealt with in a Will:

Specific personal effects such as a car, art, or jewellery can be given to named beneficiaries in the Will
If a beneficiary is under the age of 18 years, the executor can be authorized to hold the personal effects for the beneficiary until he or she reaches the age of 18 years
An informal list (precatory memorandum) can be made separately from the Will which lists beneficiaries of specific personal effects. An informal memorandum can be made (and changed) at any time and is not legally binding on the executor

Designations of Registered Plans and Life Insurance

Any designations of beneficiaries on RRSPs, TFSAs and life insurance on the plan documents with the financial institutions should be determined
RESPs might be referred to in the Will so they are continued after death
The Will can include a designation or declaration of beneficiary if appropriate
If there are insurance policies, an insurance trust should be considered

Cash Gifts

If a cash gift (called a “legacy”) is being made in the Will, below are some issues to consider:

When the gift is to be paid (for example, whether the gift is to be paid on the death of the spouse or only when both spouses are deceased)
What happens to the gift if the beneficiary dies before you (for example, whether the gift lapses or is paid to that person’s children)
If the gift is to a charity, whether the gift should be made to a successor or similar charity if the charity’s name changes or if the charity amalgamates with another charity or ceases to exist

Residue of Estate

The residue of the estate (assets that are left after payment of debts, taxes, and legacies) can either be distributed immediately, or held in trust for one or more beneficiaries.

If the estate is to be distributed immediately after death, consider the following:

the beneficiaries and the proportions to be distributed
the alternate beneficiary of the share if the beneficiary has died before you

Trusts for Children

If there are no trust terms in a Will, a child will be entitled to the estate upon reaching the age of 18 years. Including a trust in the Will allows the postponement of the distribution of a child’s share of the estate for a period of time after death. Some of the considerations for the trust terms to be included in the Will are set out below:

The trustee of the trust (can be the same as the executor or can be another person)
The length of the trust – for example, the age or ages at which the child receives his or her share of the estate (for example, one-quarter at age 21; one-half the remainder at age 25, and the rest at age 30)
The authority the trustee will have to distribute the income and/or capital in the trust to the child for his or her benefit for the duration of the trust
Whether the trustee should be given additional directions, for example, whether payments should be made for specific needs of the child

Common Disaster

If all the beneficiaries (parents and children) die at the same time, alternate beneficiaries should be named

Guardian of Minor Children

A parent can appoint a guardian of the property and person of a minor child in a Will and the appointment is effective 90 days from death. Additional considerations in appointing a guardian are:

Whether the guardian should be the same person as the executor
Whether a cash gift should be given to the guardian
Whether a memorandum to the guardians should be prepared with specific instructions about your wishes in connection with the raising of your children

Definition of Children

The law in Ontario recognizes a child born within a marriage, an adopted child, and a child born outside marriage as a child and beneficiary of an estate. The law does not recognize a step-child. The Will should address the definition of children.

Funeral Instructions

A Will can include wishes with respect to funeral arrangements, such as a wish to be cremated, a wish to be buried in a particular cemetery, or a wish that a certain funeral home be used for the arrangements. If no instructions are specified, the executor is responsible for the funeral arrangements.