When your father or mother signs their will, they must make decisions involving family, property, tax, and estate laws. Regardless of what their doctor may think, this involves legal issues and not medical ones.

If your mother wishes to change her will, her most recent lawyer should make the changes.  This is not because I am trying to keep other lawyers busy. If you make minor changes to your will, you still need a complete financial evaluation. That includes assessing all income tax consequences.

“But, Ed, it’s all right. Mom is fine with the original will. She just wants small changes. Isn’t that what a codicil to a will is for?”

Don’t make these three dangerous assumptions about changes to a will. The dangerous assumptions are that

1. there were no mistakes made when the original will was prepared

2. circumstances and laws have not changed since the will was signed

3. the changed will still works as part of an overall estate plan

No lawyer can afford to make these assumptions. They can be sued for not catching any prior errors. Instead, lawyers must insure the original will and any codicil are both valid. This includes taking a family history with a financial and tax analysis.

Simple Will Changes or Codicils

You probably think I am making this harder than it should be. Especially since your mother needs to make you her only executor.

“My mother just wants a simple change to her will, Ed. How much trouble is that?”

Think of it like a visit to your dentist. Only the dentists can look inside to assess the condition of your teeth.

You tell the dentist you need your teeth cleaned and that’s it. You don’t want x-rays, fillings replaced or a tooth pulled.

What if the dentist doesn’t tell you an infected tooth must be pulled?

Is the dentist safe for not warning you of the pain to come?

Is the dentist off the hook because you said, “Look the other way”? 

Legal Capacity to Change Wills

Regardless of the opinion of your mother’s doctors, a lawyer must do a capacity assessment.

The capacity to change a will is a legal requirement. It is not a medical condition. A lawyer must assess a person’s capacity. Most medical practitioners cannot tell you the definition for capacity to make a will.

Most medical experts would be surprised to know that there are different types of legal capacity. As result of their training, they cannot be faulted.

Your mother’s age and circumstances may necessitate investigations that take more time and add costs.

Normally, I cannot do this unless your mother calls in person to arrange a meeting in my office.

Happy Mother’s Day to all!

Are you are an executor caught in a challenge to a will? You need to learn the role you must play. Executors must remain neutral. You cannot take sides in a dispute or you put yourself at risk. You can be personally responsible for the legal court costs.

The courts have thrown out the old rules about who pays legal costs. Executors were protected when there was an estate dispute. The estate used to pay for Executors’ legal costs.

However, there is a wave of estate disputes now hitting the courts. Things have changed. Financial realities have affected the judicial system as well.

What’s new for Executors?

Angry family members, ex-spouses, children and stepchildren are fighting over wills. More people now go to court to challenge wills.

The size of contested estates has grown as well. It is not uncommon to see multimillion dollar estates in play. The tendency with some litigants is to go for broke. This winner take all approach can ruin the estate.

A person can waste $100,000 at an estate trial. More than ever the courts have started to sandbag parties who are responsible.

Executors’ Responsibilities

Judges decide who pays for estate disputes. They can punish misconduct, such as:

• Unreasonable behaviour designed to stall or hinder

• Not using alternative dispute resolution methods

• Fighting tooth and nail over Granny's china cabinet.

What if you as executor do not remain neutral? Did you take the side of an unsuccessful party in a dispute? In Ontario, the losing party pays the successful party’s legal costs. This is the rule that now applies in estates cases unless an exception applies.

There are exceptions of course.

Courts often must interpret a will or protect the vulnerable and minors. Executors do not cause these problems. In such cases the executor must hire lawyers. The estate may pay the executor’s legal costs.

What if you are an executor in an estate dispute?

Make sure you act reasonably. You must remain neutral when representing the estate.

Do not advocate for one beneficiary over the other. That can put you personally out of pocket or purse.

What an executor must do?

1. If you are involved in an estate dispute, get experienced, expert legal advice.

2. Make sure you have a written opinion about who will pay your legal costs.

3. Do not misread this post. If there is a will contest you need legal advice immediately. Only a lawyer can advise you about your duties.

Ed Olkovich

P.S.

Remember,

As an executor

• You are not required to perform legal work.

• You are not qualified, licensed or insured for such services.

Often I see executors making mistakes trying to save money. These are mistakes that lawyers would not make. Finally, applying for probate or a certificate to prove the will is legal work. Hire the right estate lawyer to do it.

Executors, call me for a free telephone consultation today. Toll free number is 1.877.MRWILLS (679.4557)

Those who survive her may have their doubts. She never expected to leave life’s stage prematurely at 48.  As a parent it was her responsibility to have an estate plan. Regardless of your wealth you face the same questions as Whitney Houston.  Test your own preparedness by answering these 3 questions.

Q: After marriage or divorce did you update your estate planning documents?

Whitney could have decided to leave Bobby Brown a share of her estate. She could have forgotten to change her will. Were her beneficiary designations, for example on life insurance, up-to-date?

Q: Have you created a trust for your children to receive their inheritance?

Did Whitney set up a trust to manage her estate investments?  If not, then all her money would go directly to her daughter at 18.

Whitney’s daughter Bobbi Kristina may have access to the entire estate. With a trust, Whitney could have staggered payments to her daughter at different ages.

Q: Did you choose the right executors and trustees for your estate?

The right executors can help your family deal with their grief.  In Whitney’s case they could also help manage her wealth. They can relieve her daughter of financial pressures and the risk of poor decisions.

Will Whitney’s loved ones say she made the right decisions?

It’s too early to tell but you can learn this lesson from celebrity estates. It’s never too early to update your own estate plan.
 

Executors, do you need help? Look for Ian MacNeill’s March 2012 article “Plan Your Estate” in Zoomer Magazine.

The article mentions my book Executor Kung Fu. This book explains how to be an executor in 3 simple steps. You won’t find these 3 steps anywhere else!
 

All lawyers are not the same. Every lawyer works differently. Before you hire the wrong lawyer to make your will, do your homework. Find out what steps other lawyers will follow. Here are the steps I follow with my clients.

What does it cost to make a will?

You have decided to invest in a lawyer-prepared will. What will it cost? That depends on a number of factors including:

•  where you live

•  the experience of your lawyer

•  the complexity of your circumstances 

Price is always a factor. However, the experience and service you want may be the deciding factors. You should know not every law firm offers the same standard of service.

Is price the only factor to consider when hiring a lawyer? The short answer is no.

Do your research before hiring a law firm. Consider these critical steps that I take to make a client’s will.

The 12 Critical Steps to Making Your Will

1. You start by receiving a free estate planning guide. This free information is on our website and can be mailed or e-mailed to you. The guide helps you to

•  focus your thoughts

•  give us information needed to advise you, and

•  understand our fees so there are no surprises.

You bring your completed questionnaire and necessary documents to your first meeting. This is critical for you to receive the best advice. It also saves time and money.

2. You meet with a lawyer within a reasonable time limit. A lawyer, and not a clerk, will review separation, marriage and shareholders’ agreements. You will be advised if this requires additional time and fees.

3. You meet with a Certified Specialist in Estates and Trusts Law. Lawyer and author, Edward Olkovich, will answer your questions and advise you. Your meeting will be private and confidential without anyone else present.

4. You will receive legal advice to help you make key decisions, including choosing:

•  executors or estate trustees

•  attorneys for property and personal care

•  beneficiaries and when trusts are necessary

•  guardians for your children

5. You receive a review and analysis of your assets and liabilities. This includes tax, probate and defensive estate planning strategies.

6. You benefit from the experience of a lawyer who has practised estate law since 1978. Edward Olkovich has written numerous books explaining the dos and don’ts of estate planning.

7. Your instructions are confirmed before your will is prepared. Your will must legally reflect your wishes and needs.

8. You receive a complimentary estate planning book.

Estate to the Heart

How to Plan Wills and Estates for Your Loved Ones
by Edward Olkovich

The world’s fastest and easiest estate planning guide.

9. You receive a draft will within a reasonable time limit for your review. You receive a written report on your estate planning and have time to consider changes.

10. You meet with a lawyer to confirm if changes are required. Once you are satisfied, a lawyer completes formal signing requirements.

11. You receive a complimentary will folder to store your original will for safekeeping. We retain notes in your file.

12. You receive a reminder when to update your will. 

Here are 3 tips to target for your good intentions:

#1 Don’t be overly ambitious with your estate planning.

You want your goals to be manageable to be successful. Don’t expect everything can be done overnight. How about starting with a will or power of attorney?

#2 You need a lawyer to prepare legal documents for you.

These include wills and powers of attorney. Are your documents out of date because you now have children? Old wills can be worse than useless. You could harm your minor children without a trust and guardian.

#3 Find the right lawyer to help you.

This will take you some time. It’s like finding a good contractor or repairman. You need a lawyer to answer your legal questions, not a law clerk. Don’t be tricked into thinking any lawyer will do. Your estate planning DNA is different. 

Call my office today – 416 769 9800 – and review your estate planning needs.

Now you’re ready to set your goals. Here are some 2 X 2 estate planning steps to take:

•   Set aside 2 hours to do your estate planning homework.

(Yes you can do it. Use my book Estate to the Heart. It’s the world’s easiest estate planning guide. It's available instantly. Then plan your will and estates for your loved ones.)

•   Make an appointment with an estate lawyer in 2 weeks.

•   Book a visit to sign your will and powers of attorney in 2 weeks.

Reap the benefits of knowing your family is protected.

Want help with your estate planning resolutions? Ask a spouse, partner, or a family member to help you. Two people can do estate planning in  a 2 X 2 approach that multiplies your chances of success.

Why does the 2 X 2 approach work? Having a loved one involved will motivate you to meet your goals. Having clear goals improves your chances for success.

Start the conversation with your loved one over coffee. Read my free estate planning guide. It’s a free e-book called Estate Planning: 7 Keys to Success. You can download it here. This plain English guide will explain how to do estate planning easily.

A court usually needs a valid reason to allow an executor /estate trustee to resign. Health problems that prevent you from finishing could be enough. But there are other factors to consider.

You or your lawyer must take these steps to resign as executor:

1. the consent of all the beneficiaries to your resignation

2. court permission to appoint the substitute executor

3. approval of your estate financial records

4. approval of any claims for executor’s compensation

5. payment of costs which could be your personal responsibility

6. the consent of the new or replacement executor to take over

7. any existing executor’s bond may need to be cancelled or replaced

Get more easy lessons about being an executor at Executor School.

Are you having doubts about being an executor of an estate? Run, don't walk, to an estate lawyer for immediate advice.

Why?

I'll tell you some stories I hear in my own law office.

I am Ed Olkovich. I am a certified specialist in Estates and Trusts Law. I give advice to executors about their legal duties. I wrote Executor Kung Fu to explain how to be an executor. You don't have to have any legal background to understand it.

First Time Executors

Some executors contact me when they start their journey. They don't know where to begin.

These executors make the mistake of thinking probate is a piece of cake. They are surprised when I tell them, "Treat it like a job that can last 2 to 3 years."

I warn them not to make any promises to beneficiaries.

Some executors contact me after 3 years working on the job. They think they are finished. But they have so many loose ends to tie up:

•  They have lost sight of the big picture

•  They forgot to order a final income tax clearance. This protects them from personal liability.

•  They almost cry when I say this takes an extra 8 months.

People ask me "When should I refuse to be an executor?"

I've written an e-book called Can Executors Dodge These Duties? (22 page PDF)

It helps executors with their job’s top 10 red warning flags. You discover how tough this job is. Then you can decide if you want to decline. 

I want you to sleep easy tonight. You can know if this job is right for you now. Click here to purchase my eBook. You’ll get instant access.