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Hergott: Shocker for some - wills are not permanent

Lawyer Paul Hergottѻýs weekly column
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Itѻýs reasonable if you thought they were with all the pomp and circumstance around their execution.

Theyѻýre not carved on stone tablets but are sometimes printed on a heavier paper stock.

Great care is taken for the will-maker to initial every page and sign the last, with each witness then following suit.

There is often a fancy looking cover page and a special blue corner stapled into place.

The carefully signed will is then stored in the lawyerѻýs locked and fire-proofed safe, if not taken by the will maker to put into a safe deposit box.

But the very next day, you can scrawl ѻýThis is my last will. I leave everything to my illicit lover, Trixie Tinglebottomѻý on a napkin, your signature witnessed by two folks who are not Trixie, and all that pomp and circumstance is erased.

No lawyer or notary involvement. No special paper, fancy cover page or special blue corner. No multiple pages of legalese.

And you neednѻýt notify anyone. Not even your spouse (legal or common-law).

You can keep your new will as confidential as your tryst with Ms. Tinglebottom.

The pomp and circumstance will remains untouched at the lawyerѻýs office or in the safe deposit box, no one the wiser that itѻýs not worth the fancy paper itѻýs printed on.

To ensure your surreptitious will is uncovered on your death, you can register it with British Columbiaѻýs Wills Registry. Donѻýt worry, nobody without your authorization can search that registry to discover your secret until after youѻýve died.

Extra steps will have to be taken for Ms. Tinglebottom to benefit from your estate if you die before your spouse. Youѻýve likely structured your affairs so that all your assets will end up in your spouseѻýs hands without your will even kicking in.

Youѻýve likely named your spouse as beneficiary of investments held in registered tax umbrellas (RRSP/RRIF, TFSA, etc.). Those assets pass directly to the named beneficiary regardless what your will says, passing outside your estate.

The same with life insurance.

You need to take the extra step of confidentially changing your beneficiary designations to name Ms. Tinglebottom.

Then thereѻýs your home, which is likely registered in joint tenancy with your spouse so that the survivor of the two of you will become the sole owner after one of you dies without any tax or probate fees.

You will need to take the extra step of ѻýseveringѻý that joint tenancy ownership, which can be done unilaterally, without telling your spouse. Itѻýs a simple matter, the result being that you and your spouse will each own 50% of the home with each of your wills kicking in to say what happens to each of your shares on your death.

Your spouse might find out about that little move because land title registrations are publicly searchable. But how many of you randomly search title to your own home?

Note that Ms. Tinglebottom is no more secure than your spouse had been. With a few strokes of a pen you can substitute your new lover, Mr. Wonderwand, with no notice to Ms. Tinglebottom.

If you have trust issues, steps can be taken to lock down your spouseѻýs estate plan.

Beneficiary designations can be made irrevocable.

Binding agreements can be made that your will wonѻýt be changed without your spouseѻýs consent.

Assets can be put into the umbrella of a trust that cannot be altered without agreement.

But extra protections cost extra. You can expect to double or triple, or so, the cost of your estate planning.

Do you have questions? Please e-mail me. If thereѻýs enough interest, Iѻýll write a follow-up column.

Please remember that the generic legal information and opinions I provide cannot be relied on as legal advice. To provide reliable legal advice, I must obtain sufficient information about you and your wishes to be able to advise you about how the law applies to your particularly circumstances.

Paul Hergott

You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.

paul@hlaw.ca





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