WILLS AND POWERS OF ATTORNEY
THINGS TO CONSIDER
Planning is a key element in avoiding problems at a later date. For a valuable summary of the reasons why a person should prepare for the future, please visit the website of the Province of Ontario for more info.
WHAT IS A WILL?
A will is a legal document by which you control the disposition of your property at your death.
WHAT IF THERE IS NO WILL?
When a person dies intestate (i.e. without a will), the property of the deceased is distributed according to a rigid formula fixed by law. The intestate law is the same for everyone. It does not and cannot take into consideration the special needs of any individual or family. Only you can do that.
WHO CAN MAKE A WILL?
The maker of a will – called the testator – must be of sound mind and at least 18 years old.
WHO SHOULD PREPARE MY WILL?
No sensible person would employ “just anyone” to remove an appendix or to repair their brakes. We want these services performed skillfully, by a professional, with a minimum of risk. Similarly, the drafting of a will involves important decisions requiring professional judgment. The “do-it-yourself” approach, using ready-made will forms, often creates serious problems.
The language of wills is unique. The incorrect use of words may result in the distribution of an estate in a manner not intended by the testator. A practicing lawyer familiar with wills is qualified to avoid the pitfalls and to advise on the course best suited to each individual situation.
IS A WILL EXPENSIVE?
No. Considering its importance, the cost of a will is modest. The lawyer’s fee is determined by the time spent in preparing a will. You should inquire about the approximate cost before the will is drawn. Keep in mind that a few hours of a lawyer’s time may mean substantial savings in taxes and probate fees.
WHO WILL MANAGE MY ESTATE?
If you make a will, you may choose an executor – a person whom you trust to manage your estate during the period of administration. If you die intestate, someone you may not want – even a creditor – may be appointed administrator of your estate and extra expense may be incurred for such things as bonding, payable by your estate.
CAN MY WILL BE CHANGED?
A will does not become final until the death of the maker. As long as the testator is mentally competent, he or she can change the will. A periodic review makes good sense.
Changes in circumstances may suggest reasons for a revised will. These include births, deaths, marriage, dissolution of marriage, tax law amendments, or changes in the nature and extent of property owned. For example, a will executed before a marriage is not binding on the new spouse. A husband or wife is entitled to a portion of the estate of the deceased spouse. Therefore, a will drawn before a marriage should be re-written after the ceremony.
DOES JOINTLY-OWNED PROPERTY ELIMINATE THE NEED FOR A WILL?
Bank accounts, real estate, stocks, bonds and other property held in the joint names of husband and wife (but not necessarily other persons) usually pass automatically to the survivor upon the death of one of them. This does not mean, however, that they do not need separate wills. If one dies shortly after the other, such as in the case of a common accident, the survivor may not have the time or opportunity to make a will, or may neglect to do so, and all of the property may pass to the unintended heirs of the survivor.
DOES A GOOD LIFE INSURANCE PROGRAM TAKE THE PLACE OF A WILL?
No. Life insurance is only one of the kinds of property that you can own. The careful person will have his/her lawyer and his/her life insurance counsellor work together on a life insurance program, particularly where special settlements have been arranged.
MUST MY WILL BE WITNESSED AND RECORDED?
The law does not require that a will be witnessed. In Ontario, you can make a holograph will. This is a will in your own handwriting, signed by you and without witnesses. This “do-it-yourself” approach often creates serious problems. Nonetheless, a lawyer usually provides for 2 witnesses to prove the signature of the testator, when the will is offered for probate.
A will is not recorded in Ontario during the lifetime of the maker. It is recorded (i.e. probated) only after death. This permits the maker to change or rewrite the will, as circumstances require, and to keep its terms confidential until probate. If you have real estate in another province or country, such as a vacation house, the law of that jurisdiction prevails. Requirements on witnesses may vary elsewhere. In Ontario, a gift to a person who witnesses the will is void.
DOES A WILL INCREASE PROBATE EXPENSES?
No. Just the opposite is true. It is possible for a well-drawn will to actually reduce expenses.
WHEN SHOULD I MAKE A WILL?
You should make a will NOW – before it is too late!
WHAT IS A FINANCIAL POWER OF ATTORNEY?
A financial power of attorney is a document that you sign during your lifetime to allow someone to act on your behalf. It should be given to someone in whom you have confidence, usually a spouse or adult child. It allows the appointed person to act for you if you suddenly become incapacitated. Usually, the individual you appoint as your attorney will be given the power to sell assets, enter safety deposit boxes, pay accounts, invest money, etc. If the right language is used in the power of attorney, it is effective even if you should be admitted to a psychiatric hospital. Have a power of attorney prepared now. Do not wait until you become incapacitated and it is too late.
WHAT IS A PERSONAL CARE POWER OF ATTORNEY?
This is a separate document to appoint someone to attend to “personal care” decisions, such as hospitalization, surgery or other care needs, in the event that you are unable to do so.
WHAT IS A LIVING WILL?
A living will is a document directing that, in the event the situation should arise in which there is no reasonable expectation of you recovering from extreme physical or mental disability, you be allowed to die with dignity and not be kept alive by medications, artificial means or “heroic measures”.
NOTE: This information is based on Ontario law. It is issued to inform and not to advise and does not create a solicitor/client relationship. The statements above are general in nature. The individual facts in a given case may alter their application or involve other laws not referred to here. Any amounts referred to are subject to change.