Articles & Resources
Why you need a Will and a Power of Attorney
LAST WILL AND TESTAMENT
A Last Will and Testament, commonly referred to as your “Will” is a legal expression of a person’s wishes regarding the distribution of his or her property after death. You can make your wishes and final requests official by writing a Will.
WHY YOU NEED A WILL:
Your family won’t have to go before a judge to get the right to manage your estate.
- If you don’t make a will naming an executor, someone close to you will have to start a court proceeding to be appointed the administrator of your estate. Until the court makes a decision, no one will be able to touch your property.
The business you built can be more easily passed on to the person of your choice
- Without an estate plan, you can’t be sure where the business will end up and how much it will be worth when it gets there.
Your children will be cared for.
- Without a will, your wishes about who will look after your children may never be known.
Your provincial government won’t be in charge of your children’s money.
- Without a will that sets up a trust for young children until they come of age, the provincial government will hold any property you leave the kids — until they reach the age of majority.
You can prepare for a loved one’s future:
- Upon your death, you could set up a Trust fund for loved one to ensure that they receive financial support from your estate periodically for a specified purpose.
You can ensure your final wishes are respected:
- You can outline your final wishes as it pertains to your funeral, burial or cremation ceremonies.
You can save time and money:
- The process to administer your estate if you were to die without a Will often takes longer and is costlier. Ensure a straight forward and timely process with a Will.
BENEFITS OF HAVING A WILL
- Minors: decide who will take care of your children if something happens to you
- We can help reduce the taxes you will pay when you pass on
- A Will can ensure that your estate is quickly settled
- A Will can reduce the court costs you would otherwise have to pay to administer an estate without a will
- You can ensure that valuable heirlooms pass on according to your wishes
CONSEQUENCES OF NOT HAVING A WILL:
A person who dies without a Will is referred to as “intestate” and the estate is referred to as an “intestacy”. In the absence of a Will:
- Your property will be distributed on your death according to legislation governing intestacy in Ontario rather than according to your wishes. Intestacy legislation often benefits certain blood relatives.
- You will have no control over who administers your estate. Upon your death, interested parties would have to apply to court and the court will appoint the estate administrator based on the information presented and taking into account the order of priority outlined in Ontario legislation. This process can be expensive and lengthy.
- You miss out on tax planning and strategic planning to reduce taxes on your estate
WHAT HAPPENS IF CIRCUMSTANCES CHANGE?
- Don’t worry! We could always make a new Will or if it is a minor change, we could draft a codicil.
- Marriage – Unless your Will is made in contemplation of a marriage to another individual, your Will could be automatically revoked upon marriage.
- Divorce/Separation – Ensure that your Will accurately reflects your wishes after divorce, separation or upon the breakdown of your relationship.
ELEMENTS OF A WILL
- Appointment of Executors:
- Appointment of guardians if there are minor children
- Distribution of personal property
- Retirement plans
- Cash gifts to relatives, friends or charities
- Distribution of residue (balance of the estate);
- Description of administrative powers given to executors and trustees
POWER OF ATTORNEY FOR PERSONAL CARE
A Power of Attorney for Personal Care is also referred to as a “Living Will”. It is a document that is valid only during your lifetime and ceases to exist upon your death. Upon your death, the instructions in your Last Will and Testament are triggered.
If you become sick or injured and cannot express your wishes, a Power of Attorney for Personal Care will lay out who can make decisions about your medical care and personal welfare. You can outline your wishes as it relates to your medical care and the type and extent of treatment you wish to receive during your last days.
ELEMENTS OF A POWER OF ATTORNEY FOR PERSONAL CARE:
- Appointment of Attorney(s)
- Conditions and Restrictions
- Consent to Treatment
POWER OF ATTORNEY FOR PROPERTY
You can appoint an Attorney(s) to make decisions with respect to your property, which includes but is not limited to real property, bank accounts and safety deposit boxes. It is valid from the date you indicate on your Power of Attorney and can last for either a specified time period or your Attorney can have continuing power, until the time of your death. A Power of Attorney for Property will also allow you to appoint someone you trust to speak to any institution, whether financial or otherwise, on your behalf.
If you become sick or injured and cannot express your wishes, a Power of Attorney for Property lay out who can make decisions about your property and who will gain control of your finances. Without the right papers, a bank could freeze a joint account so that no one could access your money in the event of your incapacitation.
ELEMENTS OF A POWER OF ATTORNEY FOR PROPERTY:
- Appointment of Attorney(s)
- Continuing Power
- Effective Date
IMPORTANT INFORMATION THAT YOUR FAMILY AND EXECUTORS WILL NEED TO KNOW…
Do your family members know that you have a will and where to find it? Do they have the contact information for your lawyer?
Here is a list of information that your family members would need to know in case you pass away:
- Do you want to donate your organs?
- Do you have a Last Will and Testament?
- Did you execute any codicils?
- Where did you put your Will?
- What kind of funeral do you want?
- Do you have any investments? Bank accounts? Pensions?
- Do you have a safety deposit box? Where is the key?
- Did you take out any life insurance policies?
- What kind of liabilities do you have?
- Who is your lawyer? Where can he/she be found?