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Making a Will, Don't Keep it a Secret

There is an entire generation that is of the mentality that a Will should be made in secret and its existence and location should also be kept secret.

For most legal, financial and government documentation, this mentality is correct. However, when it comes to your Will and other estate planning documents (think Enduring Power of Attorney, Personal Directives, Health Care Directives, etc.) this mentality is completely wrong.

Firstly, when you die, no one will know that you have a Will if it was made in secret. They will not even know to look for it. If you were unfortunate enough to be persuaded by a lawyer to have that lawyer keep your Will for you, after looking in the usual places for your Will (filing cabinets, desk drawers, safety deposit boxes) your family may assume you didn’t even make a Will. And if they thought a lawyer might have your original Will, they will have no idea which lawyer to contact to find it. Especially if you lived in different provinces/territories in Canada throughout your lifetime. There are well over 100,000 practicing and inactive lawyers in Canada, not including retired and deceased lawyers. It could take years for your family members to try to figure out if you made a Will and kept it with a lawyer. Instead, because of time constraints, your family will proceed to handle your estate as if you died without a Will. Next of kin will apply to be your administrator and your property will be disbursed according to the fallback provisions in the wills and succession legislation in your jurisdiction, rather than the wishes in your secret Will.

Secondly, unless you are vocal prior to your death, no one will know what you would like done with your remains. In your Will you may have specified that you wish to be cremated and your ashes scattered in a warm location, say Hawaii. However, if no one knows you prepared a Will nor the location you stashed it, you may end up being buried in a plot in your nearest Canadian cemetery.

Thirdly, if no one knows you made a Will, they won’t know that you wanted a specific person (your Executor) to handle your estate. Instead, as mentioned, your next of kin will apply to be your administrator. This person may end up being someone you had fundamental differences with and would have been completely opposed to handling your financial matters.

Lastly, if no one knows you made a Will, nor where to find it, your estate will be disbursed according to the fallback provisions in the wills and succession legislation in your province/territory. These fallback provisions lay out division among blood relatives and do not provide for gifts to friends or charities. Nor do they allow for division of your estate in an unequal manner among children or siblings, which may be something you wanted if you had a millionaire child and a child struggling to make ends meet.

The logical conclusion is: If you make a Will, make sure your family members and the Executor you appointed in your Will know that you made a Will. More importantly, make sure at least your Executors know where they can find your original Will and you may want to give them a photocopy of the Will to ensure your wishes are followed from the outset.

© 2021 Make your Own Wills. All Rights Reserved.

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