Best Practices Handbook for Will Preparation
Please use this handbook so that you can continue to deliver significant value and a premium experience for clients through additional value-add services such as our Will and Estate Plan Preparation services. Review the tables and outlined descriptions below in order to get the most out of our Will and Estate Preparation service and fully understand the Will and Estate Plan Process.
UNDERSTAND THE WILL AND ESTATE PLAN PREPARATION FORM
Review and understand the key components within the Will and Estate Preparation form prior to initiating any Will Preparation requests
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Last Will and Testament
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Power of Attorney for Personal Care
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Power of Attorney for Property
The Last Will and Testament Will Document collects information on a client, appoints their executors, and specifies who their beneficiaries are, as well as the treatment of their estate and how they want it distributed amongst those beneficiaries once they’ve passed away.
The Power of Attorney for Personal Care Will Document, also referred to as a “Living Will”, grants an individual or a group of individuals the power to make personal care decisions, such as medical treatment or living arrangements, in the event that a client is incapacitated and unable to make those decisions for themselves.
The Power of Attorney for Property Will Document grants an individual or a group of individuals the power to make decisions on the management of a client’s property, in the event that the client is unable to do so for themselves.
Important: Please ensure that you fully understand the key components listed above in order to properly assist clients through the Will and Estate Plan Preparation process. As a guide, utilize the Will and Estate Planning Preparation Form found within the ‘Servicing Documents’ section of the ‘Documents’ tab on the Optimize Portal.
REVIEWING THE WILL PREPARATION PIPELINE
Review the overview for the Will Preparation Pipeline before submitting any Will Preparation requests to understand how to follow and manage the process efficiently
| Pipeline Stage | Overview |
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In Process |
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In Review |
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Completed |
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Completing the Will and Estate Preparation Forms
Host an in-depth meeting with clients to fully complete the Will and Estate Preparation Forms
As a best practice, it is important to meet with the clients prior to submitting a Will and Estate Plan Preparation request in order to review the specific details surrounding their unique wishes.
The format of these meetings should follow a very uniform structure. The initial meeting with the client should be at a minimum 1 hour long at which point you will take the client through all of the details surrounding the Comprehensive Will and Estate Planning Preparation Form. It is important to schedule a follow up meeting once the Will and Estate Plans have been completed and are ready to be submitted. This will be the opportunity to verify that all of the desired outcomes and wishes are outlined accurately.
Important: Please review all applicable fields required to submit a Will and Estate Planning Preparation Package. It is extremely important to emphasize that thoroughly understanding each of the fields within all of the prep forms is key. Having an understanding of what is required and what information is needed when completing each package is important to smoothly complete each request. All requests which are missing information, will create additional and unnecessary delays.
SUBMITTING AND STAYING ON TOP OF REQUESTS
Properly Submitting Will and Estate Preparation Requests
Enter the Will and Estate Plan Preparation request only once the client has provided you with fully completed Preparation Forms with all questions answered
To ensure the clients Will and Estate Plan is completed in a timely manner, review each and every question in the Preparation Form for completeness. Incomplete Prep Forms will lead to unnecessary delays and/or your request being rejected. All Will and Estate Plan Preparation requests should be entered as a Household by selecting a Primary Individual from the Household and the following naming convention should be used on the request: John and Jane Smith
Important: Requests must be entered on a Household basis with one zipped folder for the Household with separate Preparation Forms completed for each individual.
Staying on Top of Outstanding Will and Estate Preparation Requests
Stay on top of your outstanding Will and Estate Plans by continuously monitoring the Will Preparation pipeline while promptly actioning all Will related emails to any of your outstanding Will prep requests
As a best practice for staying on top of outstanding Will and Estate preparation requests, you will use the Will Prep pipeline to view the status and stage in which a request ticket currently sits. To action or move any of the requests along the pipeline, you will receive an email when the ticket is "Pending Review". Once the ticket has arrived in this step the email that you will receive will have a description of what is required to move the ticket along the pipeline. You and your team will be prompted to review the Will documents, If any updates are required, the ticket will be moved to Amend Wills in the In Process stage. If no updates are required, the ticket will move to Pending Final Action.
Important: All emails that are received by your team in association with Will Preparation requests must be actioned according to the prompt within the email. Any emails which are not actioned by your team will create unnecessary delays. All notes are required to be outlined on the form through the email communication and so any notes that are manually added to tickets will not be reviewed.
Important: One of the witnesses must also sign an affidavit for each of the following three Will documents: Last Will and Testament, Power of Attorney for Personal Care, and Power of Attorney for Property. Please be aware that the three required affidavits will be attached to the ticket within the pipeline where they are required to be downloaded and signed.
Understand How to Review the Will Documents
Verify that the Will and Estate Plan requests in the ‘Ready To Deliver’ stage accurately reflect all of the details which were provided in the Prep Forms
Before you sit down to review the Will and Estate Plan to the client, properly compare the submitted Prep Forms against the completed Will and Estate Plan. Each component of the Will and Estate Plan has specific clauses which are incorporated based on the details the client has provided. Not confirming these details could have a drastic impact on the client’s wishes and instructions for their Executors as well as Power of Attorney(s).
For the Last Will and Testament, you want to verify:
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Correct spelling of the Executor(s) or alternate Executor(s) name and address
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Dependant children have been incorporated (if any)
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If the children are minors, whether the client wishes to delay the inheritance until they reach the age of majority or later
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Any applicable gifts have been incorporated (a gift is not part of the residue of an estate since it is paid out prior to assets being distributed to beneficiaries)
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The allocation for the residue of the estate equals 100 shares
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A wipeout clause is included in the event that all beneficiaries have passed away
For the Power of Attorney for Personal Care, you want to verify:
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Correct spelling of the Attorney(s) as well as their address and contact details
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That it is made explicitly clear whether the Attorney(s) will act jointly or successively as well as whether
decisions are made by majority or unanimous vote
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If specific authority is being given rather than full authority, that the guidelines on the specific authority are extremely detailed and do not leave room for interpretation or ambiguity
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There is clear direction on treatment wishes should the client be diagnosed with a terminal condition, persistently unconscious or severely and permanently mentally impaired with no hope of recovery
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Clauses are included should the client want behavior or pain controlling drugs
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There is clear consent or refusal for the various treatments such as chemo, defibrillation, radiation, etc.
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The client designates whether or not they would like their organs donated
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It is outlined when the Power of Attorney can be revoked if necessary
For the Power of Attorney for Property, you want to verify:
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Correct spelling of the Attorney(s) as well as their address and contact details
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If more than one Attorney has been appointed, it is outlined that they must agree before action is taken or
that they can act independently
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Mental incapacity is clearly defined (i.e. by one physician, two physicians, etc.)
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If specific authority rather than general authority is being chosen, that the specific powers are extremely detailed and do not leave room for interpretation or ambiguity
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Whether compensation (if any) for the Power of Attorney performing their duties needs has been included
Sending Plans to Clients For Review
Email the Will and Estate PDF to the client and set up a call for review and approval of the draft Will and Estate Plan
It’s important that the client fully reviews the draft Will and Estate Plan prior to you meeting with them and their witnesses for execution and that they fully understand the components. A best practice is to send the Will and Estate Plan to the client via email and follow up with a phone call to go over the various sections with them. This way you are going through the entire document prior to scheduling a meeting in person to have all of the applicable documents signed.
Important: Before sending the Will and Estate Plan PDF to the client for final review, it is essential to dedicate sufficient time to thoroughly review and cross-reference the document to ensure that all requested information
has been accurately included. If you discover any inaccuracies or omissions, please indicate them in the email associated with the Ready to Deliver stage of this plan. The form will provide space for you to specify the necessary amendments, and you can submit the revised document accordingly. This step is crucial to ensuring that the final document accurately reflects the client’s wishes and needs.
Executing the Will and Estate Plan
Meet with the client along with witnesses to execute their Will and Estate Plan. Then, send scans of the original documents to our Head Office
The Last Will and Testament, Power of Attorney for Personal Care, and Power of Attorney for Property each have a signature page with two blank witness fields. When the client is executing the document, two witnesses must be present in person and execute at the same time to ensure the Will and Power of Attorney are valid. One of the witnesses must also sign the affidavits to that effect which is described in the Best Practices for your Will client guide. Failure to properly execute the documents could open the estate up to a legal dispute in the future.
Once the documents have been executed, you must scan all of the originals and send back to the Head Office and indicate through the email provided by the Will and Estate Team that the will has been executed.
Important: The client’s signature Witnesses cannot be: Beneficiaries named in the Will, a spouse of a beneficiary named in the Will or an Executor named in the Will. It is recommended that the client uses blue ink for legal documents as it helps minimize the risk of fraud.
Staying on top of Will and Estate Planning for the Client
Maintaining a copy for our records at Head Office
Once the Will and Estate Plan ticket has been moved into Completed by our team, it means that the package has been sent from your Office and the client has signed the Will. It’s always a great idea to keep the photocopy of the documents after providing it to the client. That way, you can always refer back to it should the client misplace the document or as part of your regular reviews to ensure that client’s estate plans are up to date for their siutiation. It’s important to note however, photocopies cannot be used when settling an estate.
IMPORTANT GENERAL ITEMS & TIMELINES
Know our important general guidelines and timelines to be aware of
- When it comes to estate planning, there are many instances where people do not have extended family members. Clients may not have children and grandchildren or they may not have any siblings, nieces, nephews, parents or grandparents. When setting up an estate plan, it is always a good idea to include a wipeout provision. The wipeout provision is the final provision within a client’s will or trust that says if none of the individuals that they have left money to survive them, then leave it to the following. That final distribution could then be a friend or a charity. Think of this as the worst case scenario of what would happen if the client survived all of their beneficiaries. In many situations, the wipeout provision is a good place to put charities that clients support during their lifetime.
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Anyone can make a will as long as they are at least 18 years old and have testamentary capacity. Testamentary capacity means that the person making the will:
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Understands the nature and effect of the will
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Knows what they own
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Understands what they will be giving away
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Remembers the people they might be expected to benefit under their will
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Understands the possible claims that could be made by people they are leaving out of the will
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If a person does not have testamentary capacity when they make their will, the will is not valid.
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Always make sure the client has talked to the person they want to name as their executor before they decide to rely on them. No one can be forced to be an executor against their wishes. Executors can also resign after they have already started in the role. If the person a client named decides not to act and they have not named an alternate, then they will have no executor and a Certificate of Appointment of Estate Trustee must be obtained by the Court to settle the Estate - which can be a very lengthy process.
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If the client marries after they have made a Will, the Will is generally revoked or canceled, unless it was made in anticipation of marriage. If they divorce after they make a Will, it only revokes or cancels any gift to a former spouse. It also cancels the spouse’s appointment as Executor, trustee or guardian in the Will. However, this won’t apply if the Court is satisfied that the Will-maker did not intend by divorce to revoke the gift or appointment.
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It is very important not to choose an executor who will automatically be in a conflict of interest. This is guaranteed to create distrust and often creates acrimony and disputes. These disputes can destroy families. For instance, if one of the client’s children lives with them, and the others do not, generally it is a bad idea to choose the live-in child as the sole executor of the estate because they will have a large conflict of interestrelated to dealing with the house.
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Complex legacies can really complicate the process of applying for probate and administration of the estate.
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A will that is destroyed by the testator is revoked. They can revoke a will by tearing it, burning it, or the like. Generally, if they make a new will they may wish to destroy previous ones. However, if there is any concern about the validity of a new will, then retaining a prior valid will can be helpful.
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If the client has multiple wills, the court will most likely choose the most recent version to settle the estate.
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Dying without a valid Will can leave the client as an intestate (they have left no instructions on how they want their estate to be settled). In Ontario, this is where the Ontario Succession Law Reform Act will step in and govern how the client’s property will be settled amongst their relatives.
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Probate is the formal legal process through which the court: Grants a person the authority to act as the executor of an estate, confirms an executor’s authority to act on behalf of the deceased and formally confirms that the deceased’s Will is their last Will and Testament.
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The subsequent death of a witness does not affect the validity of the Power of Attorney or Will. However, if both witnesses pass before one completes the Affidavit of Execution, there may be challenges verifying the will’s validity during the probate process.
Estate Planning
