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Will Planning

Estate planning encompasses a broad area of consideration of taxes, investments, budgeting for retirement, education of children and grandchildren, and planning for financial and personal care decision making in the event of mental incapacity. However, most individuals and professionals tend to consider that making of a will is possible the central part of the implementation of any estate plan. For many, particularly those with high net worth, there are additional elements of an estate plan to consider, including family trusts, reorganization of family business to plan for succession, alter ego and joint partner trusts, and the like. However, in almost any instance, a complete estate plan will include a properly planned and prepared will. In the actual planning process, clients tend to enter it through a variety of means, by way of their contact with their accountant, investment advisor, or banker, but in all cases, the actual preparation of the documents to implement the plan come back to the lawyer who will draft the will and any other related documents. At the same time, the lawyer who is the first point of contact in the process, due to the nature of the client relationship, needs to be able to spot the areas where other professionals need to be included in the process.

Will planning involves the integration of issues involving the assets of the testator, the tax situation and the family situation. Complexity in any of these areas can cause greater degree of complexity in the estate planning process. In order to ensure that all issues are properly identified and addressed, it is necessary for the lawyer to become familiar with the nature and extent of the client's assets , the family situation, the issues surrounding marriages, the relationships outside marriages, the special needs of children and other dependents, tax issues and business issues, to name a few. The will as it prepared ought to be sufficiently clear that the client who is prepared to read it, can understand what it says, and satisfy him or herself that it accomplishes what is needed and wanted. Even the apparently simple will for a married couple, who intend to leave everything to each other and provide for children if both spouses are dead, must be carefully planned and prepared. Executors and guardians must be chosen who can be expected to do the job. Trusts for children and grandchildren must be workable having regard to the anticipated size of the estate, and different powers must be given in the will to enable the executors and trustees to do their job effectively. With more complicated situations such as divorced, separated or same-sex couples, children from successive relationships and disable dependents, will preparation goes well beyond the simple document that can be prepared from a single precedent.

Will preparation can only be effective if the parties and the professional advisors know the assets of parties that can be expected to pass outside of the estate and therefore are not necessarily affected by the will. As more and more assets held by individuals are held in joint tenancy with others, or have beneficiaries designated, as in the case of registered funds like RRSPs, RRIFs and RESPs, pension funds, segregated funds and other insurance products, it is often the case that the will in the traditional sense affects only a small part of the net worth of the client. Failure to take into account the assets that are outside of the will can have serious consequences to any estate plan. The last but not the least, the use of the accepted legal language in a will should not interfere with creating a will that clients can still understand. if the overall language is clear, and client is advised as to what certain specific words and phrases mean, it should be possible to prepare wills for that they can understand if they are prepared to put some effort into reading them.