CONTROLLING YOUR LEGACY
Most of us associate wills with images from Hollywood movies – the mourning family huddled together in a lawyer's office, waiting for the surprise announcement that disinherits a once-favoured son. In most cases, reality is much less dramatic. Nevertheless, a will is the best way to ensure your wishes are carried out after your death and an essential element of any estate plan.

If you die intestate, or without a will, the courts will decide how your estate will be divided among your family members. This could leave out loved ones and result in delays and a tax bill that's higher than necessary.

A legal, up-to-date will makes sure your estate passes smoothly to your beneficiaries. It's the best way to help your family cope during an exceptionally difficult time and allow them to take advantage of the available tax-saving opportunities.

There are three basic types of will: a holograph will is an unwitnessed document that's entirely in your handwriting and signed by you; a form will is one you complete from a do-it-yourself kit; and, a formal will is drawn up by a professional lawyer or notary. Both a form will and a formal will must be witnessed by two competent adults who are not either beneficiaries or the spouses of beneficiaries.

The chief advantage of drawing up a formal will is that it's designed to stand up in court under various challenges. It is your lawyer's or notary's responsibility to make sure the wording in your will is absolutely clear and legally binding. When dealing with something as important as your estate, you don't want to leave anything open to interpretation.

How often can I change my will?
You can change or revoke your will at any time, as long as you remain mentally competent.

What instructions should I include in my will?
Your will allows you to make certain critical decisions regarding your estate and your family. Some of the most significant choices you can make in a will are outlined below.

NAMING AN EXECUTOR
Your executor will manage your estate and distribute your assets to beneficiaries. It's a good idea to name a back-up executor who can take charge should your first executor not be able to fulfill his or her duties. Choose an executor who is a close friend or relative you trust completely, or if your estate is complex, consider appointing a professional executor.

GIVING THE EXECUTOR SPECIFIC POWERS
Your will authorizes the executor to pay your debts and taxes from your estate. In addition, you may want to specify which assets should be sold to cover these expenses, and allow your executor to pay for the professional services of a financial advisor or lawyer out of the estate. If your executor has solid investment knowledge and experience, you might want to give him or her the powers to invest in various types of securities – such as mutual funds – that may not be specifically permitted under provincial estate law. You may also need to give your executor the right to operate a private business or conduct real estate transactions on behalf of the estate. Whatever your situation, make sure your will gives your executor enough latitude to exercise his or her sound judgement in situations you can't predict.

NAMING A GUARDIAN
Choosing a guardian (also called a custodian) is one of the most important decisions you need to make if you have minor children. The person or people you select should share your values and be willing to take on the responsibility of caring for your children until they reach the age of majority. Make sure you discuss issues such as your children's medical history and allergies with the guardian you pick so treatment can continue uninterrupted if anything happens to you. You will probably also want to let your guardian know what provisions you're making in your will to cover expenses related to raising your children.

NAMING A TRUSTEE
Minor children aren't legally allowed to own assets in their own name, so you will need to establish a trust and name a trustee to manage any inheritance left to young children. There might be other reasons you do not want your assets to pass immediately to a beneficiary. Your 20-year-old daughter might have reached the age of majority but could still have difficulty handling a large inheritance. An inheritance for an incapacitated adult might also be better left in a trust. A trust can be set up in your will or in a separate trust agreement.

LISTING YOUR BEQUESTS
One of the central functions of a will is to document how you want your personal property, investments and cash distributed to your beneficiaries. Your financial advisor can provide information on tax-saving strategies you can consider when determining who gets what. Your lawyer will ensure that your will does not conflict with family law and dependent relief provisions, which state that you have a duty to continue supporting certain dependents.

INCLUDING CONTINGENCY PLANS
Your lawyer will help you think through the various scenarios that might interfere with the provisions in your will. For example, if you and your spouse die in a common disaster, what should happen to the assets you've left to your spouse? If the guardian you've named predeceases you, who will take care of your children? If you have earmarked some of your legacy for a child's education but your family needs the money for food and shelter, will they be able to access the education funds? No one can predict the future, but your lawyer can help you plan for it.

WHAT WILL YOUR LAWYER NEED?
Before you meet with your lawyer to discuss your will, consider how you would like to distribute your assets and assemble the following information:

• the full legal name and address of your executor(s)
• the full legal name and address of guardian(s), if applicable
• the full legal name and address of trustee(s), if applicable
• the full legal names and addresses of your beneficiaries
• a complete list of the beneficiaries named on your Registered Retirement Savings Plan, Registered Retirement Income Fund, pension plans and insurance policies
• a complete list of your assets and where they can be found

OTHER DOCUMENTS
A will only takes effect after you die. To appoint a close friend, family member or professional to make financial and medical decisions for you should you become incapacitated, you need a power of attorney for finances and a power of attorney for health care (both known as mandates in Quebec). Talk to your financial advisor or lawyer for more information.

KEEP YOUR WILL UP TO DATE
Only an up-to-date will can ensure your wishes are followed. Plan to review it once every three years to make sure it still expresses your wishes and takes into account your changing circumstances.

Consider:

• are your executor(s), guardian(s), trustee(s) and beneficiaries still living?
• have you married, remarried, separated or divorced since you wrote your will?
• have any of your children reached the age of majority?
• have you celebrated the birth of a child or grandchild?
• have you moved to another province?
• is your financial situation significantly different?
• is your will still tax-effective?

If you're not sure how any of these changes might affect your will, talk to your financial advisor or lawyer. The modifications they suggest may result in a simpler transfer of your estate to the people you care about the most.

Thank you to our estate planning expert
Mackenzie would like to thank Sandra Foster, author of You Can't Take It with You: The Common-Sense Guide to Estate Planning for Canadians, for her invaluable assistance.