Wills, Estates & Living Wills
Introduction to Wills and Powers of Attorney for Care
Important, preliminary decisions must be made in preparation for completion of your Will:
It will be important to give thought to these issues in order to provide comprehensive instruction to your lawyer, so that your Will can be completed. Your lawyer will also be able to provide advice and guidance as to these concerns when you meet to discuss your Will
Wills – Frequently Asked Questions (FAQ’s)
Do I really need to see a lawyer to complete my Will? Can’t I just use a kit or buy a pre-prepared Will?
A Will is reasonably economical to prepare with proper legal assistance. There is no substitute for qualified and specific professional advice.Unintended errors or omissions in a Will can delay or thwart administration of your Estate. They can be very costly to your executors and intended beneficiaries, and in some extreme cases, entirely undermine the validity of a Will.Even if you have completed a Will, it may be extremely difficult to have it accepted for Administration (probate) by the Estate Office of Ontario Superior Court, unless the witnesses to your Will have attended with a lawyer or notary to complete sworn affidavits confirming that they indeed did attend upon your execution of your Will.Your lawyer will generally act as a witness to your Will, and complete this documentation at the same time your Will is executed. If your witnesses predecease you or cannot be located, and no such Affidavits of Execution are available, your Will may be rejected. Do I really need a Will? What is an intestacy? What happens if I never complete a Will?
In Ontario, if you die without a valid, complete Will, an intestacy is created, and the distribution of your Estate will be governed entirely by the Succession Law Reform Act.
This law provides for a complicated mechanism of determining which of your family members will inherit specified portions of your Estate, depending on the amount you leave and the closeness of your relatives’ familial relationship to you.
Where there is an intestacy, a surviving spouse is entitled to a preferential share of the Estate – the first $200,000.00 in value. The residue thereafter is divided between the surviving spouse and surviving children.
If there is only one child, the spouse and child divide on a 50-50 basis. If there is more than one child, the spouse is entitled to one-third, and the remaining two-thirds is divided equally between the children.
If there is no spouse and no children, the Estate will pass to a parent or parents. If no parents survive, the Estate will pass to brothers or sisters of the deceased. Absent surviving siblings, the property of the estate will be distributed among the nephews and nieces of the intestate equally. If there are no surviving nephews and nieces, however, the ranking “next of kin” as defined in the Act are entitled to share in the Estate.
This scheme is further complicated by Ontario’s Family Law Act. The FLA entitles a surviving spouse to elect either to take under the Will/intestacy, or alternatively, under the Act’s property division and equalization scheme (ordinarily applicable upon marital separation/divorce).
What is meant by “Estate Planning?” What difference does it make?
Proper Estate planning takes into account the best means of minimizing the liability of your Estate and its beneficiaries to pay income taxes and provincial Estate Administration fees when your Estate is administered.
These fees are entirely based on the value of your Estate – the greater the value of your Estate, the higher probate fees will be.
“Estate Planning” refers to the process whereby you and your professional adviser work to lawfully structure your holdings and assets so as to minimize the taxes and fees that may be payable at the time of your death.
This form of planning aims to maximize the after-tax value of your Estate in order that you can best provide for your beneficiaries.
What taxes will be payable by my Estate?
This question can best be addressed by your accountant and financial advisors, with reference to your specific circumstances. In general terms, however, the following are examples of typical taxes which may apply:
Why do you recommend that I prepare a new Will if mine was made before 1986?
The Ontario Family Law Act came into force in 1986. It allows a person making a Will to specifically declare and provide that a gift under the Will is not to be considered part of the ‘net family property’ of the beneficiary, if that beneficiary undergoes a matrimonial separation or divorce.Prior to 1986, family property was treated differently in martial separations, and such a provision in a Will was not required or generally, contemplated.Today, unless a Will contains an explicit provision excluding the inherited property from the beneficiary’s net family property, his or her spouse could be entitled to a divided share of the inheritance and income from the inheritance.
Wills completed before 1986 do not typically have such a provision, and should be updated accordingly.
All current Wills should be reviewed to ensure that this provision is included, if it is your intention to shield the inheritance from the potential for a claim by a spouse under the Family Law of the Province.
Powers of Attorney for Care
You may complete a Power of Attorney for Care to empower one or more trusted persons to make decisions on your behalf as to your personal and medical care in critical circumstances where you are incapacitated or otherwise unable to provide informed medical consent.
Under Ontario law, if you have not granted a Power of Attorney for Care and are unable to consent to medical care or treatment, an application may be required to the Ontario Consent and Capacity Board for the appointment of a substitute decision maker for you. Your consent is not required in such a proceeding and you may have no legal or personal control over such an appointment.
Accordingly, in urgent circumstances, a Power of Attorney for Care can be of critical and timely importance to your family members and health care providers alike.
You may also provide specific instructions in a Power of Attorney for Care as to the decisions you do or do not authorize your attorney to make on your behalf. For example, some people elect in the Power of Attorney for Care to specifically instruct health care providers as to the degree to which extraordinary measures may be taken to resuscitate or medically extend natural life where there is no reasonable prospect of genuine recovery thereafter.
A Power of Attorney for Care is a compact document that can be quickly and cost-effectively prepared to provide great peace of mind and certainty to you and your family.
At WISE LAW OFFICE, we recommend preparation of this documentation at the same time your Last Will and Testament is completed, with similar periodic reviews also urged at three-year intervals thereafter.
Your attorney must be at least sixteen (16) years of age, and may not be receiving compensation from you at the time of appointment for the delivery of health care services to you.
Contact us by telephone at (416) 972-1800 or by email to firstname.lastname@example.org to discuss your Power of Attorney for Care or to arrange a meeting with us at our Toronto Law Offices.
Wills and Powers of Attorney – Our Fees
The cost of preparing a simple, uncomplicated Last Will and Testament is $350.00 for one individual Will. The fee for mutual, spousal Wills is $600.00, for two spouses. In complex matters, additional fees will apply.
Powers of Attorney for Care and Continuing Powers of Attorney (for Property) may also be prepared at a fee of $75.00 per document.
Fees are payable upon completion of the documentation. HST is applicable on all fees.
The Information on this page is © 2007 to 2015, Garry J. Wise and Wise Law Office. It is intended for information purposes only. It is not a substitute for legal advice and may not be relied on as such. The reader is expressly advised and cautioned to consult with a qualified Lawyer for information and advice regarding the reader’s specific circumstances.