Wills, Trusts and Estates

When hearing the words Estate planning, most of us think of a Will and Powers of Attorney. We also tend to think of this as a task for those individuals in their mid to late years of life, who have a vast array of assets. However, Estate planning is not reserved for just those individuals as nearly everyone has an Estate. Your Estate is comprised of everything you own— your car, home, other real estate, chequing and savings accounts, investments, life insurance, household and personal possessions.

Good Estate planning is much more than just a Will and Powers of Attorney. It is about making a plan in advance for your assets to ensure your wishes are carried out and so your estate will hopefully pay the least amount paid in taxes, legal fees, and court costs when the time comes. Estate planning allows you to control the what, the how and the when, your assets will be distributed to the people and/or organizations you choose.

Estate planning is not a task that should be left for later in life. The best time to plan your Estate is now. As unpleasant as it is to think about our own mortality or incapacity, being caught off-guard and unprepared when incapacity or death does strike can be much worse. Estate planning gives you and your family peace of mind by knowing you have a properly prepared plan in place. This is one of the most thoughtful and considerate things you can do for yourself and for those you love.

While there is a cost to having a lawyer prepare a Will, and that you may think you have a ‘simple’ estate, there are many steps along the way that can ultimately cost your estate much more in litigation down the road.

Will drafting is more than a simple fill-in-the-blank exercise. It is a complex undertaking that includes understanding a testator’s family situation, debts, assets, the interplay of a number of different pieces of legislation – the Succession Law Reform Act, Family Law Act, Estates Act, Trustee Act, Insurance Act, and Income Tax Act, to name a few, along with cases that have previously established how certain terms in a Will are to be interpreted, to fully understand how their wishes can be fulfilled after they die.

There are two main types of Powers of Attorney – a Power of Attorney for Property and a Power of Attorney for Personal Care. In both cases, the grantor (the person making the power of attorney) appoints an attorney (a person that is most often a spouse, family member or close friend) to make decisions on behalf of the grantor. There are many varieties of each type of Power of Attorney that differ in terms of the decisions an attorney is authorized to make and when the attorney is indeed authorized to make decisions on behalf of the grantor.

Did you just recently buy a house? Have you just recently had or adopted any children? Better yet, are you alive and over the age of 18? If you answered yes to any of these questions, it’s a really good idea to prepare Powers of Attorney.

A fair question and one that has been asked by friends and clients alike. The issue is if you do not have Powers of Attorney in place and something happens to you (for instance an accident or sudden illness) and you lose your capacity to manage your own affairs, Powers of Attorney are no longer an option as they can only be created while you have the mental capacity to create them. Instead, a person close to you will have to obtain a guardianship order from a judge to be able to begin making decisions on your behalf. This involves a lengthy application process that requires extensive legal work and is significantly more expensive than preparing Powers of Attorney. Not to mention, you no longer have the final say for who becomes responsible for managing your property and your personal care.

If you die without a Will (dying intestate), the administration of your Estate and distribution of your assets will be governed by the SLRA and left to the court system to determine. Your Estate may ultimately be distributed to people you may otherwise not have chosen to benefit from your Estate.

Everyone. Now.

It is a misconception that people who don’t have a lot of money or kids don’t need a Will. To the contrary, everyone’s Estate will require some degree of administration. Regardless of the size of your Estate, some planning now can save a lot of time, money and grief for your family later.

It is never too early to prepare a Will. A Will is a living document which means that as long as you have the mental capacity, you are able to change your Will at any time, and as often as you would like. Waiting until ‘later’ or when you are ‘older’ increases the chances that you may not get the chance to express your wishes about your Estate.