Which is better: a new will or a codicil to my old one?

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By Julie Cazzin with Ed Olkovich

Q: I need to update my 2005 will because I have to make two major changes. How do I choose an attorney? Do I just pick any estate attorney in my neighbourhood? How do I know if it’s best to add a codicil to my will or to simply redo the will entirely? My estate has become quite complex over the past 10 years. — Frank

FP Answers: Frank, codicils are legal documents with two witnesses that are used to add or remove simple items in existing, valid wills. Most lawyers now prepare new wills rather than make codicils. The original will and codicil must be produced when its owner dies. These documents are read together as one legal document. This assumes that the original will, and not a copy of your 2005 will, can be found.

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Your 2005 will may not be legally valid for various reasons. If so, the amendment or codicil may not be valid either. Was your 2005 will prepared by a lawyer? This can make a world of difference. You may have trouble finding witnesses to the 2005 documents.

Lawyers should not take the risk that your 2005 will satisfies all current legal requirements. The lawyer of the 2005 will and the witnesses may not be available to defend it. This complication can lead to costly extra steps.

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There are other reasons to make a new will as well. Your choice of executors and beneficiaries may have changed along with relationships. If you married, your 2005 will could have been revoked. Marriage creates new legal obligations and tax options. If your estate is more complex, you can benefit from plans to reduce taxes. In short, you should not use codicils to amend your 2005 will.

Legal advice to make your will is a good investment. Your loved ones will benefit from your estate plan and will. Lawyers now would confirm your current marital status and your dependants. Do you have a business, corporation or minor children? If so, you need a new will. Your lawyer can defend your new will in court, if required.

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You also asked about how you can choose attorneys. To clarify, in Canada, the term “lawyer” describes persons with legal skills. The term “attorney” is an American term for lawyer, unless you are referring to an attorney under your power of attorney documents.

If you visit American websites or sources, you may know that American tax and estate laws are different. You cannot rely on the internet to plan your estate.

How do you choose lawyers to update your will? Interview possible candidates. Ask who you will meet and who will answer your questions. Financial institutions or accountants can recommend a will lawyer. If you have a blended family, business or foreign assets, you may need additional tax advice.

Usually, you get what you pay for in professional advice. I cannot recommend that you choose a lawyer based solely on their prices. Use lawyers who spend at least 25 per cent of their time making wills. Fee information may be available online. If not, ask.

Edward Olkovich is an Ontario lawyer at https://mrwills.com. He is also certified by the Law Society of Ontario as a specialist in estates and trusts law. This information is not a substitute for legal advice.

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