Preparing Wills and Estate Planning
Many people understand the importance of having a will. Not everyone, however, is aware of the benefits of retaining a lawyer to draft and finalize a will. The security you gain by hiring a lawyer goes beyond knowing that your will meets technical requirements and will hold up in the face of challenge. You will also know you have explored the full range of issues that a will can address and understand how it fits into the context of your broader estate planning.
Our goal is to assist clients with their immediate and long-term estate planning, and to remain accessible to them as their needs change over time.
When we meet with you, we will review your particular circumstances and make recommendations regarding what should be included in your will, as well as the need for double wills or a mutual wills agreement. We can assist with the following:
- Testamentary trust provisions
- Appointment of guardians for minor children
- Identification of an estate administrator, or executor, for the estate
- Special provisions for asset distribution, such as charitable donations
Preparing double wills is an estate planning technique which minimizes the amount of probate fees (estate administration taxes) payable on death by your estate. One will, the “primary Will” deals with those assets that require a Certificate of Appointment of Estate Trustee with a Will (Probate) and only the value of assets in this Will are subject to Probate fees. The second Will, the “secondary Will”, deals with those assets that do not require Probate and the value of the assets in this Will are not subject to probate fees. By creating two pools of assets, we can thereby reduce the total value of the estate and minimize the fees paid by your estate requiring probate.
Mirror or Reciprocal Wills vs. Mutual Wills
There have been successful arguments made in court that the terms of a will can be set aside on the basis of contract – yes, contract. So how does a will become a contract? Well, under circumstances where a couple makes a will with a lawyer, each will be mirroring the other will (referred to as reciprocal or mirror wills) , arguments have been made that each member of the couple has contracted with the other not to change the will at any time after the making of the will.
When a couple makes a mirror will, each member of the couple has provisions as to what happens when the survivor of them dies, and those provisions are often the same – so, for example in a second marriage, where each spouse has children from a previous marriage, the mirror will might provide that, upon the death of the survivor, the total estate of the survivor will get split between the children of each of the spouses. The argument made in court is that, at the time of the drafting of the mirror wills, there was an implied contract that the survivor could not change his/her will to cut out the children of the first of them to die.
In order for such a contract to be found to exist, courts will usually look for outside evidence, other than simply the existence of mirror wills, to support the argument for a contract to exist. In order to create clarity in estate planning, it remains important, for couples who are preparing an estate plan, to give consideration to whether it is their intention to bind each other to the terms of the wills that they jointly prepare.