Wills & Estates

WILLS AND ESTATES

 

WILLS

A will is a document which contains your directions regarding the disposition of your assets after your death. Basically, it outlines “who gets what and when”.

A will addresses the following issues:

  • the distribution of your property, assets and possessions,
  • intended beneficiaries - your family, friends, or institutions and charitable   organizations whom you wish to benefit from your estate,
  • an executor either a person or institution chosen to administer your estate and carry out your wishes as outlined in your will.

Before your lawyer starts drafting your will, he or she will ask you for a full and accurate list of your property, including all assets and liabilities.

 Assets and Liabilities

Specifically your lawyer will require you to provide him or her with detailed descriptions of your assets including their value, nature and location, with the details of ownership, and any limitation or constrains on your legal ability to dispose of them after your death. For example, if title to your house is kept with another person as a tenant in common, you can only bequest the portion you own and not the entire house. If, on the other hand, you hold the title as joint tenants as is most common with matrimonial homes after your death your portion will go to the other joint tenant or tenants and you cannot transfer it to anyone else through your will.  Another example occurs in the event someone holds a life interest in a house, that house cannot be bequeathed until the person having the life interest dies.

The Lawyer will also need to know your debts and obligations as they will have to be paid off from the estate assets before any beneficiaries can inherit any of the estate assets.

Beneficiaries

You will also have to provide your lawyer with the list of your beneficiaries, the persons you wish to inherit from your estate.  You will have to specify what specific bequeath or asset each beneficiary will be entitled to and any possible conditions you wish to implement which will govern these entitlements.

Executor

You also will be asked to choose your executor to carry out the terms of the will.  The executor does not need to be from your family, it can be your friend or even an institution, but above all it must be someone you place the utmost trust in as an executor has great powers in disposing or investing your assets. It is essential to plan for alternative executors in a will in the event the first choice cannot or will not act, or appoint more than one executor.

Your Will

Your lawyer will ask you a lot of questions regarding your circumstances:  Are you married, separated, divorced or living in a common law relationship? Is anyone legally “dependant” on you? Do you have any minor children, or step-children?   Do you have any children who are disabled? The answers to these questions are critical to your lawyer’s ability to advise you appropriately factoring in your unique circumstances. This will ensure that your will is drafted in a way that protects the best interest of your loved ones and at the same time best reflects your wishes and objectives.

Your lawyer’s understanding of your particular circumstances is fundamental to ensure your will is properly and legally drafted as there is no absolute testamentary freedom in Ontario.  Part V of Succession Law Reform Act (dependant support) and Part I of Family Law Act 1986 (property rights of legal spouses) place statutory constrains on testamentary freedom. You have to consider and include adequate provisions for your spouse and children in some instances when preparing your will in accordance with these statutory obligations.

 

 Execution of the Will

In order the will to be valid it must be signed by you in front of at least two witnesses who are present at the same time. Neither witness can be a beneficiary mentioned in your will, nor the legal spouse of a beneficiary. Otherwise any bequest made to the beneficiary, will be void.

Your will become effective upon your death.  Keep your will current and valid at all times and let your executor and your family know where it is stored. During your lifetime you can change your will as often as you wish as long as you have the requisite degree of mental capacity to do so. However, should you draft a new will and not just an amendment to your existing will, your new will shall automatically invalidate and cancel your previous will.

 

Amending your Will

Keep your will current and valid at all times and let your family know where it is located. The will should be reviewed and updated as changes occur in your life such as:

  • the birth or death of a family member,
  • divorce, separation or marriage,
  • purchasing a new property,
  • a change in your financial situation or employment status
  • when your current will no longer accurately represents your wishes

Note, that while a divorce or separation does not affect the validity of a will, entering into a marriage automatically revokes your existing will. Essentially, new marriage puts you in a position as if you never had a will, thus you have to resign your previous will or sign a new one factoring in your new circumstances.

You can change or update your will at any time, as many times as you want, as long you are mentally capable to do so.

If you are planning to make a will or if you wish to determine whether revisions should be considered please schedule a legal consultation with us by calling our office at (416) 292-8277 or e-mail us at wojcikpc@gmail.com.  We will prepare your will to ensure that your wishes will be carried out exactly as you want. 

 

POWER OF ATTORNEY FOR PROPERTY

A power of attorney for property deals with your property and financial matters. It is a legal document in which one person, the grantor, gives authority to act on his or her behalf in conducting his or her financial affairs to another person, their attorney. A power of attorney for property must be properly executed and signed in front of two witnesses, who must both sign the document, neither one of whom can be an attorney listed in the document.  A power of attorney for property is for a general purpose. It allows the attorney to buy, sell and transfer property immediately as soon as it is signed, and continue to be in effect until it is revoked by the donor, unless restrictions on the scope of the power of attorney are included in the document.

The authority of the attorney can be very broad or restricted to a specific transaction or property such as the sale of specific piece of real estate or it can contain a limitation pertaining to time such as the document is valid for a few weeks or several months or years. A power of attorney for property can be used by the attorney only if it is in full force and effect, if it has been properly executed, and if the donor has not revoked the document by executing a subsequent document.

A power of attorney for property will become null and void when the donor revokes the document, when either the donor or the attorney dies or in the event that the attorney becomes incapable of performing his or her duties.

A power of attorney for property is a powerful tool in planning for the possibility of incompetency in the future.  However, power of attorney for property gives the attorney a lot of rights and power. This creates an enormous potential for misuse or fraud. It is, therefore, crucial that the donor fully understands the implications of his or her giving of a power of attorney and that he or she was not unduly influenced in making his or her decision in any way. Also, when choosing your attorney make sure that the person you chose has a genuine concern for your welfare and can be trusted to act in your best interest in the event you become incapacitated. When you decide on who to appoint as an attorney be sure to communicate your wishes with that person.

Review your power of attorney regularly and update it in the event that your circumstances change and it no longer fits your current age, health or family situation.

 If you would like to have power of attorney for property drafted for you or you wish to review existing one, please schedule the consultation by calling our office at (416) 292-8277 or e-mail us at wojcikpc@gmail.com. 

POWER OF ATTORNEY FOR PERSONAL CARE

A power of attorney for personal care, also known as a living will is used for making decisions regarding the end-of life care and health related issues when the donor is unable to make those decisions for himself or herself. The document extends to all matters related to the person, such as healthcare, nutrition, grooming and shelter. It may also contain specific instructions which the donor wishes to be followed about which medical treatments are to be given or withheld such as prohibition of blood transfusion by certain religious groups or the discontinuation of life sustaining machines if an individual is maintained in vegetable state.

A power of attorney for personal care cannot be used unless a donor is incapable of making decisions regarding his or her personal care on his or her own.

The authority of the attorney can be very broad or restricted to a specific types of decisions. Power of attorney for personal care can be used only if it is in full force and effect and if it has been properly executed. A power of attorney will terminate when the donor or the attorney dies or the attorney becomes incapable of performing his or her duties. Additionally, the donor may revoke the power of attorney for personal care as long as he or she maintains the capacity to do so. The donor can also appoint more than one attorney at the same time and must specify whether, each attorney can act independently or whether all decisions have to be made unimosly.   It is prudent to include more than one attorney into a document in the event that your first choice of attorney predeceases you or is unable or unwilling to perform his or her duties. When you decide on who to appoint as an attorney be sure to communicate your wishes with that person.

If power of attorney for personal care becomes necessary at some point of your life but you have not prepared one it will be up to the courts to appoint an attorney for you. The problem with this process id that it takes significant amount of time and money and that the court may appoint someone you do not want.

It is important to review your power of attorney for personal care regularly and update if it does not fit your current age, health or family situation. 

If you are planning to make a power of attorney for personal care or you wish to review existing one, please book the appointment by calling our office at (416) 292-8277 or e-mail us at wojcikpc@gmail.com.  We will prepare your power of attorney for personal care to ensure that your wishes will be carried out exactly as you want.