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Estates & Wills & Trusts

The estate talk: dos and don’ts

Whether in the family living room or the lawyer’s office, it’s not easy to broach the subject of wills, powers of attorney and estate issues with older adults, Toronto estate and family lawyer Karon Bales tells AdvocateDaily.com.

But it has to be done and most people feel better once they’ve taken care of it, says Bales, a founding partner with Bales Beall LLP who focuses on family law, wills and estates.

It can be challenging for young lawyers to talk about death and legacies with older clients, especially if clients aren’t comfortable talking about it. In her practice, Bales says she’s often told: “I’ll think about it and get back to you.”

So she takes a conversational approach.

“Sometimes people think I’m nosy but you have to ask questions about their background and their family and how things are going and often estate planning clients will tell you things they wouldn’t tell their best friend.”

An honest exchange about family dynamics and histories helps determine things like which child is best suited to have power of attorney for financial matters or to be an executor, says Bales, who suggests parents discuss some elements of their estate planning with adult children.

“I am not one of those people who believes you should circulate copies of your will to your family members,” says Bales. “Nor do you need a formal meeting where you detail specific plans. A general conversation is fine.”

She advises clients to think about important memorabilia and how they’d like to see it passed down.

“Do it before downsizing and not when you’re on the verge of moving out of your house,” Bales adds. “It’s so overwhelming. Do it when you have a chance to think about it.”

Take the adult children’s lifestyles into account with legacies, she says. A world traveller with a tiny condo may not be interested in Aunt Mary’s silver tea set and “maybe there’s another family member who would really cherish it.”

Bales suggests to her clients that they make a list of their wishes about important items that can be attached to their will. It’s a document that can be easily changed. And she reminds clients they need to name beneficiaries for RIFs and TFSAs in their will.

Sometimes the kids have to take the lead.

“It’s worthwhile having a discussion with family members and adult children may want to see about initiating this discussion,” Bales says.

Parents should be asked general questions. Do they have a will and when was it done? (Bales advises clients to review their wills every three to five years.) Determine if they have powers of attorney in place for financial matters and personal care. They should also have a contact number for the parents’ lawyer.

When is the best time to have a talk about legacies? Bales says it depends on the individual, but it can often happen around life changes, like selling the house and downsizing, selling the family cottage, or planning to spend part of the year out of the country.

“Then it’s time to have a discussion.”

She recommends parents bring the family together for a chat, rather than doing it individually. Don’t have the conversation over a weekend dinner, aim for something akin to a business meeting for an hour over tea or coffee.

As for estate planning, Bales asks clients to consider what would have happened if they died last week.

“We know that didn’t happen, so we’re not talking 'what if I died next week,' which can make some people nervous,” she says of the approach.

Bales wants clients to understand the potential costs of not having these discussions.

“Either people haven’t updated their wills, they have interests in private companies and they haven’t done a secondary will to deal with that so they’re paying more tax and that always makes people unhappy," she says.

“If there’s not sufficient direction in the will as to how the executor is going to deal with the personal effects and household goods and they haven’t made up a list, it can really be difficult,” Bales says.

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