What To Expect When Making Your Will With A Lawyer
For most Canadians who only need a basic Will, an online Will solution like Epilogue can be an easy-to-use and affordable alternative to seeing a lawyer. However, someone with a more complicated situation may need to have their Will prepared by an experienced estate planning lawyer.
Some examples of situations that require the help of a lawyer include:
Having children with someone other than your current spouse/partner (i.e. a blended family scenario)
Having a family member who receives government disability benefits
Owning foreign real estate that can’t be dealt with under a Canadian Will
Wanting to exclude a spouse or child from the Will
Wanting to do sophisticated tax planning in the Will
If you need a lawyer to prepare your Will, you might be overwhelmed thinking about where to start and what to expect. This blog will demystify what it looks like to make a Will with a lawyer.
Step 1: Choosing a lawyer.
Most people don’t know where to start when it comes to finding a lawyer to help prepare their Will.
One good option is to ask family and friends for recommendations. Speaking to other people about their experiences (positive and negative) can go a long way in helping you choose a lawyer for yourself.
If you don’t know anyone who has prepared a Will with a lawyer – or just don’t feel comfortable asking – you can reach out to other professionals, like an accountant or an investment advisor, for advice. If you know a lawyer who practices a type of law that doesn't deal with trusts and estates, they can likely refer you to a lawyer who does.
If you’re still stuck, it may be helpful to know that each province’s law society maintains a public directory of lawyers in the province (links below).
These directories are often searchable by criteria like location, language proficiency, and areas of expertise. Your province’s lawyer directory can be a good place to start to find a lawyer in your area who can help with a Will.
Once you’ve made a list of potential lawyers to contact, go online and check out their website or their law firm’s website. Most lawyers have a website containing helpful information about their legal practice and good insight into whether they can help you. This is also where you can find the lawyer’s email address and phone number.
Step 2: Introductory Call.
Once you’ve decided which lawyer you want to work with, the next step will be to have an introductory phone or video call.
The lawyer will ask you some basic questions about yourself, such as your name and date of birth, and gather some information about your family circumstances and assets. You usually don’t have to go into any great detail at this point, but the lawyer will want to get a general sense of your situation to let you know how they can help you.
On this call, you can ask whatever questions you’d like about the lawyer’s services and experience, their process for drafting a Will, their fees, and their payment options. Some estate lawyers charge fixed fees for preparing Wills and other estate planning documents, while others charge hourly for their services.
If the lawyer you’d like to work with charges hourly, you may want to ask what you can expect to pay to have your documents prepared. While they may not be able to provide a precise estimate, it would be reasonable to have a rough expectation of what your Will is going to cost.
If you’d like to work with the lawyer, ask them about the next steps. They may send you a retainer agreement and/or questionnaire.
Step 3: Retainer Agreement.
The purpose of a retainer agreement is to set out the arrangements between you and the lawyer in clear terms and may include:
A description of the work they will be doing for you;
An explanation of their fees and billing practices; and
The lawyer’s obligations regarding confidentiality.
The retainer agreement may also request payment of a retainer fee. Lawyers often request a retainer fee to ensure they will get paid for their work — you can think of it as an advance payment for the work the lawyer is going to do. Lawyers are required to place retainer fees in a segregated account. Technically, the lawyer cannot claim the funds as their own until they have done work and issued an invoice to you.
Asking for a retainer fee is also not required, so even though it may be a lawyer’s standard practice, they may have some flexibility for small estate planning matters.
If anything in the retainer agreement is unclear, you should ask the lawyer to clarify before signing.
As part of the retainer process, the lawyer may also ask you to provide a copy of your government photo ID, as well as contact information for their records.
Step 4: Questionnaire & Planning Meeting.
Once the retainer agreement and fee (if applicable) are in place, you and your lawyer will be able to get into the details of your estate planning.
The lawyer may send you a questionnaire to fill out with more detailed information than you provided on the introductory phone call, which may include:
Details of your relationship status, including the name and date of birth of your spouse/partner (and any ex-spouses/partners)
Names, ages, and other relevant details about your children
Details about any existing Wills, Powers of Attorney, Health Care Directives, or other estate planning documents you have already created
Details about any prenuptial agreement or separation agreements you have in place
Information about your assets and liabilities
In addition, the questionnaire may prompt you to consider some of the decisions you will need to make in the context of preparing your Will and other estate planning documents, such as:
Who to name as executor(s) and alternate executor(s)
Who to name as the guardian(s) and alternate guardian(s) of your children and pets
Whether you want to leave any specific gifts to individuals or charities
How you want the residue (the bulk) of your estate distributed
How you want to treat the distribution of assets to beneficiaries who are minors or young adults
Be prepared to discuss any items not covered in a questionnaire with the lawyer during an estate planning meeting, phone call, or video call.
The questionnaire and meeting/call objective is to help the lawyer gather all the information they need to prepare your Will.
Step 5: Document Preparation & Review.
Once your lawyer has all of the details needed to prepare your Will (and any other estate planning documents you’d like prepared), they will draft the documents for you.
This process can take anywhere from a couple of days to a few weeks. How long it takes depends on the complexity of your situation and the lawyer’s schedule at the time. You may want to ask the lawyer for an indication of their timing in advance so you have a general idea of when you might hear back from them.
Once your lawyer prepares the documents, you should have the opportunity to review them and ask questions. Take your time; it’s worth carefully going through these documents to ensure you understand them and all details (like the spelling of names) are correct. You may find some parts of the documents filled with legal jargon (a.k.a., legalese), so don’t be afraid to ask questions if something isn’t entirely clear.
Hopefully, your documents will be ready to be made official (without too much back-and-forth!).
Step 6: Signing/Execution Meeting.
The last thing that is needed to make a Will valid is to have it signed in the presence of two witnesses. Witnessing of Wills is typically done at the lawyer’s office, where the lawyer acts as one witness, and someone else from their office acts as the second witness. However, there is generally no requirement for a lawyer to be a witness.
After the Will-maker signs the Will, each of the witnesses must also sign the Will. It is also common to have the Will-maker and both witnesses initial every page. You will only sign one copy of your Will, and that original document becomes your official Last Will and Testament.
Most lawyers like to keep the signed original Will in their office; however, it is ultimately up to you to decide where you want your Will to be stored.
A note on remote witnessing.
As a result of recent changes to estate planning law (motivated by COVID-19), remote witnessing of Wills is now available in some provinces. However, the rules for remote witnessing are very different from in-person witnessing.
If having your Will witnessed remotely is something you’re interested in, ask your lawyer about that option.
Get your Will done sooner rather than later.
Whether you choose to get your Will done with a lawyer or use an online service like Epilogue, it’s important to get it done sooner rather than later. Getting your Will done will give you peace of mind knowing you have a legal document with your wishes and you’ve protected the people who matter most to you.