WILLS & ESTATE PLANNING

Many people cringe at the thought of preparing a Will. They may miss the point that drafting a Will is not planning their death, but planning what happens after they pass away. In effect, to prepare a Will is to plan for the lives that go on when you are not around. A Will allows you to continue to care and provide for your loved ones even after your death.

When sitting down with a lawyer to prepare a Will, you have the chance to look at your assets and how you want them distributed. Your family lawyer may review ownership of your assets, so you understand what is, in fact, your inheritance. You will have an opportunity to make changes, reorganize some of your assets, considering purchasing life insurance policies, review your investments and who you have appointed as beneficiaries in any registered plans.

The costs of preparing a Will are very low compared to the costs of dealing with a deceased person’s estate. Without a Will, a judicial process is needed to appoint an Estate Trustee that will, then, be in charge of the Estate administration and distribution. With a Will, this process may be completely unnecessary. If the process is still needed, it will likely be faster and uncomplicated.

WHY DO I WANT TO HAVE A WILL?

• You want to have a Will because it allows you to decide how your assets are going to be distributed at the time of your death. Instead of letting legislation determine who will inherit your collections, your car, your home, your cottage, you take control of what you built throughout your lifetime and decide who should receive what, and when, after your death.
• You want to have a Will because you care for your family and close friends. You understand they will be grieving your loss and you want to make their life easier at the time of your death. A well-drafted Will prevents misunderstandings and conflicts.
• Depending on your assets, a Will may allow for a very straightforward distribution of your assets, without the need for a judicial process.
• You want a Will because you need to exclude someone from receiving your inheritance. For example, if you are separated and not yet divorced, I Will is essential to avoid that your ex will receive a part of your estate. In life, you may have already gifted a family member with an advance of your inheritance, and you want to distribute your estate among your other beneficiaries.
• You want a Will because you have children under the age of majority and wish to ensure they will be in a familiar environment if there is an accident with you and the other parent. Without a Will appointing a temporary guardian, your children may be placed in a foster home until a judge decides who will have custody of them.
• You want to have a Will because you want to avoid paying taxes unnecessarily.
• You want to have a Will because you have a common-law partner, and you want to ensure they receive part or all of your inheritance.

WHEN SHOULD I PREPARE A WILL?

• Today, if you do not have one, for the reasons above.
• When your first child is born, so you can rethink your beneficiaries and, more importantly, appoint a temporary guardian for them.
• When you get married. Marriage revokes a Will in Ontario. If you had one, you need to prepare a new one considering your marital status change.
• When you have been living with someone, to ensure they receive part or all of your inheritance.
• When you separate. If you have a Will, you will want to change your appointments and beneficiaries. If you do not have a Will, you will want to ensure that the usual legislation will not apply to your estate distribution. Without a Will, your spouse will most likely inherit your estate, at least partially.
• After your divorce, if you have a Will, you should review your appointments and beneficiaries.
• When someone close to you dies. If you have a Will, it is essential to review and understand how their death affects your Will provisions and make appropriate changes.
• When you make a big purchase, such as buying a house, or if you have a business, you should review your estate planning to ensure your inheritance is distributed as you wish.

POWERS OF ATTORNEY

In a Power of Attorney, you appoint a person, your Attorney, to make important decisions for you. You may become incapable of making these decisions yourself, so this document will let people know who you want to take over and what you want them to consider when deciding about your assets and health.

• Continuing Power of Attorney for Property

This document allows someone else to make financial decisions on your behalf. It is usually effective immediately, which means your Attorney should be someone you trust completely. They will be able to do on your behalf almost anything you can do yourself, like selling and purchasing real estate, or making investments.

This document is important because it gives your loved ones access to your assets when you are incapable of doing so for health reasons, for example. It is also useful in case you are away from home and need to get something done.

The Continuing Power of Attorney for Property is only valid while you are alive. After your death, your Attorney cannot act on your behalf anymore, and your Estate Trustee starts acting. For many people preparing their estate planning documents, this will be the same person, for example, a spouse.

• Power of Attorney for Personal Care

This document gives your Attorney for Personal Care authority to make health decisions on your behalf. They may ask for and review your health records. They may authorize treatments or decide on whether you should be moved to a retirement home. It only becomes effective once one or more doctors determine that you are incapable of making these decisions independently. Preparing this document is an opportunity to think about how you want to deal with specific situations and write it down so your family is aware of your wishes. This document avoids family conflicts when hard decisions about your life and health need to be made. It gives your loved ones the peace of mind of knowing they are following your instructions and doing what is best for you, according to your own terms.