Importance of Having a Will
If you own property of any kind, you need a “Last Will and Testament” (also known more simply as a “Will”) to set out your wishes with respect to how your property should be distributed when you pass away. A Will is a key to ensuring your wishes are carried out in the way that you originally intended.
What is the difference between a testamentary trust and a living trust?
A testamentary trust is a trust created by the grantor’s will after they pass away, whereas a living trust is one created by the grantor during their lifetime.
Does a Last Will and Testament need to be notarized?
A Last Will and Testament does not need to be notarized in order to be valid, but it must be signed by the person who created the will (testator or testatrix) as well as witnesses.
What is probate?
Probate is the judicial process by which a will is proved in a court of law and validated as a document that is the true last testament of a deceased individual.
What happens to real estate without a Will?
Without a Will, your estate may be in limbo upon your death until either the government or a person (not necessarily someone you would choose) is appointed as estate trustee to look after your assets. This may result in delays, further expenses, and/or other complications.
Furthermore, without a Will clearly stating who you want your beneficiaries to be and what they are entitled to, Ontario’s Succession Law Reform Act sets out a default scheme for who the estate will be distributed to as well as the percentage/monetary allocations.
Wills, powers of attorney & trusts
Last Will & Testament
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Power of Attorney
Power of Attorney for Property and
Power of Attorney for Personal Care available
POWER OF ATTORNEY FOR PERSONAL CARE/PROPERTY
POWER OF ATTORNEY
A Power of Attorney (also known more simply as a “POA”) is a legal document that gives someone else (ie. an “Attorney”) the right to act on your behalf and make certain decisions for you. You can include your spouse or relative, trusted friend or professional (i.e. a lawyer or accountant), or any capable adult as your attorney. After signing a Power of Attorney, your attorney will be able to:
- do your day-to-day banking and sign cheques on your behalf
- buy or sell real estate on your behalf
- borrow money on your behalf
- take on any other responsibilities listed in the Power of Attorney
Your attorney is legally obligated to act only in your interest and limits for their actions can be written in the POA. You can also have multiple attorneys listed in the POA. It is important to consider any conflicts between their actions given that they share access to your bank account and or other assets.
POAs are normally needed in one of the following two scenarios
1. Unavailability
If you are going to be out of town or in a different country for an indefinite period of time, you may need someone to act as your Attorney on a real estate transaction or other financial/property matters and sign documents on your behalf.
2. Incapacity
If you are deemed to be incapable (i.e. unable to make decisions or to understand the consequences of said decisions), an attorney can act on your behalf and make decisions in your best interests. Examples of this include being in a coma, unconscious, or experiencing mental deficiencies due to old age or a health problem.
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What Are the Different Types of POAs in Ontario?
There are generally two different types of POAs:
- Power of Attorney for Property/Financial MattersSuch POAs may be used when individuals want their Attorney to be authorized to sign documents for buying, selling, or refinancing property on their behalf, to sign personal cheques on their behalf, and/or deal with other property on their behalf such as stocks, mutual funds, bonds etc.
- Power of Attorney for Personal CareThis type of POA covers one’s personal decisions, such as those related to housing or health care. For example, someone may want to authorize their Attorney to hire nurses and keep them in their residence for as long as their medical condition will allow, or they may want their Attorney to be authorized to remove them off life support devices if their medical condition takes a turn for the worse.
At Seif Law Firm, we give you the option of making a POA for either a property/financial matters or personal care, and we also give you the option of making a single general POA that incorporates both of these types of POA in the same legal document.
Our lawyers specialize in all kinds of P.O.A.s, including ordinary and enduring (continuing), financial and general POAs.
Protection at a Minimal Cost
In order to sign a POA, one must be capable. If you wait until issues of incapacity and/or health problems develop that prevent you from signing a POA, it will be a very costly and time-consuming process to install a substitute decision-maker (such as a court-appointed Guardian of Property or Guardian of the Person). Also, it may cause additional stress and hardship for your loved ones as they try to help you navigate your property/financial matters and personal care decisions while you are incapable.
FAQs about Power of Attorney in Ontario
What is the difference between a POA and a will?
While a Will applies after your death (and explains your wishes with respect to distributing the assets of your estate), a POA applies while you are still alive but are either unavailable or incapable as described above.
What happens if you don’t have a Power of Attorney?
Your family may be forced to petition a court to be appointed as your legal guardian or conservator in order to gain the authority they need to care for you.
Do spouses automatically have power of attorney?
In Ontario, your spouse does not automatically have power of attorney over property that is solely registered under your name.
Who can override power of attorney?
As long as the principal (the person granting the power of attorney) is mentally competent and able to communicate, they are the only entity that can revoke a power of attorney. If they are no longer able to communicate, however, the power of attorney can be challenged by a third party.
How much does it cost to get a power of attorney in Ontario?
The legal fees of a power of attorney in Ontario are usually calculated based on the document you want to authorize to a lawyer. The price can range anywhere from $100 to $300 per document. Contact us directly for more details.
Probate Application
Estate Administration
Probate Assets in Ontario
Assets subject to probate in Ontario include:
- Ontario real estate.
- Bank accounts.
- Non-registered accounts (stocks, bonds, trust units, etc.).
- Registered accounts without a named beneficiary.
- Insurance policies without a named beneficiary or made payable to “estate.”
- Vehicles registered under the deceased’s name.
- Jointly-owned assets without a right of survivorship.
- Intangible property and personal goods.
- Business interests administered by the will.
If you have young children and/or other dependants, a Will is also considered very important in setting out your wishes for those individuals (for example, choosing guardians for your children) instead of leaving that decision solely to the court’s or others’ discretion.
Pettle Law provides;
- Consultation on will executor selection
- Clearly identifying your heirs and provisions for other persons
- Disinheriting your spouse or other heirs (if applicable)
- Naming guardians for your children (if any)
- Assessing and dividing your property, listing and dividing assets
- Composing a last will or codicil
- Signing your will in the presence of witnesses
Estates Protection at a Minimal Cost
Although it is normal for people to delay in preparing a Will, you should consider preparing a Will for the above-noted reasons. Ultimately, you will want to make sure your loved ones are adequately provided for and protected so that they can live comfortably after you have passed away. Moreover, the fee (charged by our law office) will be very small in comparison to the additional costs that can be incurred in administering an estate where there is no Will, and the Estates process will likely be more difficult to resolve for your loved ones.
Distribution of Assets in a Will
Pettle Law focus is on ensuring that your Will accurately reflects how you wish for your assets to be distributed at the time of your death.
There are a variety of possible distribution schemes. For example, in a Joint Will signed by a husband and wife, they may designate that the deceased spouse will leave everything to the surviving spouse at the time of their death. However, if both spouses die at the same time in a common accident, they may then designate all assets are left to the children in equal shares and to be held in trust until they reach a certain age or become adults. Of course, this is merely an example of a possible distribution scheme, and you are free to choose the distribution scheme that works best for you.
