Estate Planning FAQs
What are the main purposes of having a will?
- To appoint a person or person to efficiently manage your assets/business after your death and to carry out your wishes “executor”;
- To distribute your assets as you think best and to provide for the welfare of your family;
- To avoid or save taxes and take advantage of tax saving devices where possible;
What will happen if you do not have a will?
- You can not select your executor (now called an “Estate Trustee”) and an “administrator” may be appointed by the Courts.
- You can not select your beneficiaries and the beneficiaries will be determined by provincial law and the beneficiaries may not be whom you would want.
- If you have children under the age of majority, their share must be paid to the Public Guardian and Trustee and held for them until they reach the age of majority.
- Without a will, a child is entitled to his or her share at the age of majority and you would not be able to set up a trust for your children or spouse or consider any special needs
- Not having a will may result in missed tax savings both at the time of death and following the death.
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Why have a lawyer draft your will?
There are three important reasons why it is advisable to have a lawyer assist you in preparing a will:
- We are familiar with the statutory requirements with respect to execution of the will.
- We will make sure that your intentions are properly expressed.
- Lawyers will be able to assist you in settling up provisions in a will in order to minimize the amount of tax payable by your estate.
What is a power of attorney?
A Power of Attorney allows a person (the grantor) to give to another person (the attorney) the power to make certain decisions on behalf of the grantor. Though the term “attorney” implies a lawyer, a lawyer need not be the attorney. A Power of Attorney does not prevent the grantor from continuing to act for him or herself if he or she wishes.
Changes in the law will now allow for two types of Powers of Attorney. “The Continuing Power of Attorney for Property,” like the older Power of Attorney, may deal with financial matters before and after a person is mentally incapacitated. This Power of Attorney will allow the attorney to do on a grantor’s behalf anything with respect to any type of asset that the grantor could do if capable except make a will.
“The Power of Attorney for Personal Care” (referred to as a “Living Will”) may deal with personal and medical decisions if one is mentally incapacitated. The Personal Care Power of attorney may also have specific instructions regarding matters there is no reasonable prospect of recovery.
Why have a power of attorney?
As the Ontario Government’s marketing slogan for promoting Powers of Attorney states “You Decide Who Decides”, Powers of Attorney allow one to appoint a designated individual or individuals to make the financial and now personal decisions that have to be made if that person becomes mentally incompetent and can not manage their personal affairs. Without Powers of Attorney either the government or a person you would not have chosen may be appointed to make those decisions.
The Powers of Attorney allow one to make specific directions about finances, accommodations, and health issues including the important life support decisions. Without Powers of Attorney perhaps different decisions may be made on your behalf.