Wills and Estates
Wills
It has been said that the only certainties in life are death and taxes. That surely is as true today as when the words were first said. Today, it is more important than ever to be proactive in planning your estate, including your Will and Powers of Attorney. Planning ahead, and making the major decisions while healthy and clear headed not only helps to maximize what you wish to leave for our loved ones, but also saves those you love with the burden of making incredibly difficult decisions through emotional times. In our initial meeting, we will review your existing Will (If you have one) and provide legal advice and recommendations. Once we are both satisfied with the results of the planning process, we will draft up the necessary documents and meet again with you for signing.
For spouses, you may choose to have very different Wills and estate plans, or, your Wills could be mirrors of one another. There is also an additional option, which is often used for spouses in second marriages or relationships who still wish to preserve a portion of their estates for their children from a prior union. These are called Mutual Wills – Wills that also include a Contract, binding each spouse to the terms of the Wills, and which cannot be changed without the expressed written consent of the other party or the beneficiaries of the deceased spouse, as the case may be.
Henson Trusts – if one of your loved ones qualifies to receive Ontario Disability Supports Pension, there are special rules and strategies which come into play in order to protect his or her entitlement to ODSP, while still allowing you to provide for your loved one after you have passed.
Please contact our office for more details on any of the above.
“Living Wills”
Generally, what is thought of as a “living Will” is what we call a Health Care Directive and is usually used (where and when applicable) in tandem with a Power of Attorney for Personal Care. This is a legal document in which where you have provided specific instructions regarding your care should you become terminally ill and are unable to communicate your wishes. (such as decisions making around artificial life support). Follow the link for Powers of Attorney below for frequently asked questions.
Powers of Attorney
In Ontario there are 3 types of Power of Attorney
1. A Continuing Power of Attorney for Property is a legal document which authorizes your appointed person (the “attorney”)covers your financial affairs and allows the person you name to act for you even if you become mentally incapable. The appointed person “steps into your shoes” and can act on your behalf in any financial matter, except making a Will. Clearly, it is of utmost importance that this individual be trustworthy and will act in your best interest. The appointed individual has a legal obligation to act in your best interest and can be called upon to explain his or her actions in court if there are concerns.
2. A non-continuing or limited Power of Attorney for Property, which is generally used for a specific matter or time period to address financial affairs, but cannot be used if you become mentally incapable. This is a document that you might use if you were going out of the country for a period of time and needed someone to act for you in your absence (such as to sign documents for a real estate transaction). Your appointed attorney would then be able to act on your behalf regarding the matters or for the time period specified in the document..
3. A Power of Attorney for Personal Care authorizes your appointed attorney to act on your behalf regarding personal decisions, such as health care. (such as medical authorization for a given procedure, or whether you need additional assistance in daily living matters).
Estate Trustee Applications
What is an Estate Trustee?
There are several terms used to reference an Estate Trustee.
1. “Estate Trustee With a Will” is now used to describe an executor(male) or executrix (female) – the person appointed in a Will to administer an estate. Technically, the Will does not needed to be submitted to the Court with an application for a Certificate of Appointment With a Will (Probating the Will) in order for the estate trustee to begin to act, as the authority to act as Estate Trustee comes directly from the Will. However, in reality, most institutions an Estate Trustee will need to deal with in the administration of the estate (such as banks) will still require a Will to be probated before they will allow the assets to be dealt with in any way. What probate means is that the Estates Court office has confirmed that the Will is valid and the Estate Trustee named in the Will is duly authorized to act.
Occasionally, if the bulk of the value of the assets of the deceased were held jointly with a surviving spouse, it may be possible to complete all the necessary transactions to finalize the estate without the need for probate. Estates which include real property and/or other substantial assets (such as bank or investment accounts) which are not held jointly with a surviving owner will most certainly require probate and the issuance of a Certificate of Appointment before much of the administration of the estate can start.
2. “Estate Trustee Without a Will” is now used to describe an administrator – a person who applies and is appointed by the Courts to administer an estate when there is no Will. The Succession Law Reform Act sets out a specific list of priority (in relation to the deceased) of applicants and Consents by the beneficiaries and any individual higher in priority rank are required to be included in any application. The Estate Trustee Without a Will may not act with respect to the estate until such time as he, she, or they are appointed by the Court.
Specific paperwork is generally required to probate a Will, and assistance with various transactions, (liabilities, bequests, releases, estate trustee accounting etc) may be required. We offer comprehensive legal guidance and advice to ensure proper navigation through proper channels in order to protect both the estate and the estate trustee.