WILLS AND LIVING WILLS
Give yourself and your family peace of mind.

LAST WILL AND TESTAMENT
"Unless you're unmarried, childless, and without property, writing a will is one of the most important things you can do to protect your loved ones," says Mona Brown of Carman, Manitoba, a lawyer and executive member of the National Wills, Estates and Trusts Section of the Canadian Bar Association.

If you die without a will, your estate is turned over to the state, which divides your assets according to the succession laws of your province. This may mean costly and lengthy legal battles for your survivors, and even worse, your loved ones may not be provided for as you wished.

Some people make wills with the help of software programs or preprinted forms, but lawyers warn that some of these aids are "simply not right." American-produced packages, for example, may not take account of Canadian legislation, much less make allowances for distinctions in provincial probate laws.

If you do draw up your own will, have it checked by a lawyer. Better still, pay a lawyer to draw up a proper will in the first place, says Brown. Self-made wills are often challenged in the courts "because the deceased's intentions are unclear, or the deceased failed to anticipate certain events or deal with certain assets."

HARD FACTS ABOUT WILLS

THE RIGHT WAY A valid will may be on scrap paper, provided it meets certain standards. These vary from province to province, but usually require: That the testator, or person making the will, is of "sound mind" (not senile or mentally incompetent), and not acting under the influence of another person. That the testator be a legal adult -- at least 18 years of age in most provinces, but 19 in some. That the will is dated, and signed at the end by the testator and at least two witnesses who are not beneficiaries, or spouses of a beneficiary, and who are both present when the testator signs. (Wills handwritten by the testator do not require witnesses.)

Lawyer Stephen R. Elias, whose company publishes legal tools for nonlawyers, concedes that the more complex your estate, the more serious your need for legal help with your will. Similar advice is included with a Last Will and Testament package from Vancouver's Self-Counsel Press, one of Canada's leading publishers of legal books and packages for the layman.

In drawing up a will, remember that there may be restrictions on how you bequeath your assets. If you don't abide by certain laws on family relief -- if you disinherit a spouse or dependent children, for example -- your will can be overridden by the courts.

The law also prevents you from passing on certain kinds of property -- life insurance proceeds, for example. These are paid to the beneficiary named in the policy. Also, assets held in a trust must be distributed according to the terms of the trust. In most provinces, the matrimonial home may not be given to a third party; the surviving spouse may have rights to the property. Here are other tips that apply whether you write your own will or seek professional help.

• Update your will after any major life change, such as marriage, divorce, the birth or adoption of children, the death of a spouse, or a move to another province. Otherwise, many income tax savings may be lost to your estate.
• Make sure your executor knows where your original will is located and can access it. When you update your will, destroy the earlier version.
• To be valid, a will must comply with the wills' act of your province. In most provinces, provided your will is executed properly and notarized on execution, your witnesses will not have to appear in court when your will is probated.
• Your will is the worst place to specify funeral arrangements, since often it is only examined after your burial. Instead, leave written instructions with friends or family.
• Some provinces recognize holograph or handwritten wills -- ones that are set out, signed, and dated in the testator's handwriting. Holograph wills are not witnessed: they become invalid if anyone else writes on them. However, proof of the testator's signature and competence will be required for probate.

LIVING WILLS

TRUE STORIES Leave information with your executor on where all your assets are located, advises lawyer Mona Brown. This is one of the most important things you can do to protect your heirs and facilitate the settlement process. Brown remembers one case in which a woman left millions of dollars in unrecorded assets in hundreds of bank accounts in different communities. It took years to locate all her moneys and settle her estate.

"Everyone should have a living will," advises Cynthia St. John, executive director of Dying With Dignity, a national, nonprofit organization dedicated to fostering communication about end-of-life decisions and improving the way people die. A Canadian pioneer of living wills, Dying With Dignity has helped countless people ensure that their final wishes are carried out.

Everybody should have both a living will and a durable power of attorney for health care, says St. John. She considers the latter especially crucial for people with serious medical conditions.

A living will contains your written instructions about medical treatment in the event you are unable to communicate at the end of your life. You can, for instance, instruct doctors and family members as to the steps you do or don't want taken to preserve your life, and address issues such as whether you want to be an organ donor.

A durable power of attorney for medical care allows you to appoint someone to make medical-care decisions on your behalf if you are unable to do so yourself. You can appoint just about anyone to act as your agent -- although not your doctor. St. John recommends choosing someone whom you trust and who will be a strong advocate on behalf of your wishes.

Legal recognition of living wills and durable powers of attorney for health care varies from province to province. Provinces that recognize living wills require health care workers to respect an individual's wishes.

Talk to your family about your decisions, and ask them to support the person who will have durable power of attorney for your health care.

Discuss your wishes with your family physician while you are still in good health, and ask your doctors to place copies of your living will and durable power of attorney for health care in your medical files.

Inform your clergy and lawyers of your directives and give them, too, copies of the documents.

Kits on living wills and power of attorney for health care are available at nominal cost from Dying With Dignity. For more information, check its website (www.web.net/dwd/).

FINAL ARRANGEMENTS

MYTH -- A living will could limit your access to health care in an accident. FACT -- Living wills only go into effect when you're dying. In an emergency, medical technicians are charged with stabilizing you and getting you to a hospital.

It's very important for families to talk ahead of time about funeral arrangements, says Lisa Carlson, author of Caring for the Dead: Your Final Act of Love.

Openness about funeral preparations not only ensures that a loved one's wishes are carried out at death, but also protects families from deceptive business practices or overpaying for funeral services when they are at their most vulnerable. "Consumers need to be informed funeral shoppers," says Carlson.

• Be wary of prepaid funeral packages that are not transferable if you move, or ones, payable in installments, in which the prearranged price is not locked in should you die before paying in full.
• You can save thousands of dollars if you plan ahead and shop around for a funeral home.
• Many people don't know that embalming, one of the costliest items on a funeral bill, is not always required. Provincial law sets rules for cremated remains; urns may not be required, or you may not have to have a casket.
• Ignore false claims that some caskets or vaults will preserve the body better than others.
• Memorial societies, which charge a nominal membership fee, provide information and resources to help people arrange affordable, dignified, prearranged funerals. For information on memorial societies, contact the Etobicoke, Ontario-based Federation of Ontario Memorial Societies.