The Canadian Bar Association
Estates & Wills & Trusts

Communication with beneficiaries vital when preparing a will

Having an open discussion with family members, beneficiaries and intended executors is an important part of preparing an estate plan in order to minimize conflict, reduce expenses and meet the testator's intentions, Ottawa family law and estate lawyer Timothy N. Sullivan says in a recent Caregiving Matters podcast.

As Sullivan, principal of SullivanLaw, says in the interview, one of the main legal issues that families face when someone dies is trying to respect the deceased’s intentions.

“The family will have to go through a process of grieving, dealing with the funeral and the burial … The issue that they hand to lawyers at some point is ‘what now’. The ‘what now’ when it comes to the lawyer’s point of view is ‘where’s the will?’”

For testators, he recommends taking the time during the estate-planning process to communicate this information to family members, beneficiaries and executors.

“It’s in that discussion you may say: ‘my will is located at such and such a place, or I’m going to go see a certain lawyer to get this done’.”

Although many people approach the subject of estate planning and death as a “macabre discussion,” Sullivan says to face ‘the inevitable’ is part of life and being prepared is important.

“Being prepared for that is, ‘how is my wealth, how is my stuff going to be transferred to my loved ones and the intended beneficiaries, charities and so forth. How is my estate going to be administered the way I intend for it to be administered?’ Somebody works hard all their life and they accumulate an amount of wealth and some status and they’ve acquired friends and family and interests along the way.

“It would be important, I think, to everybody who has accomplished that to properly dispose of it so that it minimizes conflict, it reduces expense and it meets the intentions of the testator. The best way that that can happen is for the testator to have had a good conversation with the intended beneficiaries,” he tells listeners.

This, he says, should include talking to those closest to you about their intentions, interests, or whether certain items have great sentimental value.

These conversations, says Sullivan, need to be frequent and honest, in order to avoid surprises.

“When the family members are dealing with the fallout of a death in the family and there’s grief, there’s planning, old rivalries come to the fore, some things are unaccounted for, some people can’t make it to the funeral on time or whatever the challenges are during that time, what you don’t want to have to have is this added legal conflict."

This discussion, he adds, is not the end of the process. Sullivan also advises clients to revisit their will or estate plan after a significant event in their life.

“They may want to reconsider the contents of their will, what their intentions are, and every five years or so, pull out a copy of the will, look it over to see if it continues to meet your intentions or your expectations,” he says. 

In particular, he says individuals going through either a divorce or remarriage need to reconsider their will.

“You don’t want your ex-spouse, necessarily, to act as your executor, or to at least be named as your executor, who may not be able to act anyway because of the separation or the divorce, so now that part of the will might be an intestacy. If everything goes to the spouse in the will, you may want to reconsider that,” he says.

“A new marriage, for example, will revoke a will, so if you’ve had a will and a plan with a spouse and you are no longer spouses either through death or through separation, and then you get married again, all that planning is no more.

"So your new spouse, if you don’t have a new will, will follow the rules of intestacy and possibly get half your estate, perhaps. And that might not have been intended. Maybe your adult children and some of the grandchildren should have been in line to receive.”

Sullivan also suggests those with blended families spend an hour with a lawyer to discuss how the legal landscape is changing as a result of their new situation.

“I think it's of vital importance at that stage to talk about possibly a prenuptial agreement, possibly doing new wills, and establishing a bit of an estate plan in order that we reduce surprises on the death of that testator who has acquired an entirely new set of responsibilities that may be totally unaccounted for in the estate plan or in the existing will," he says.

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