Ottawa Will and Estate Lawyers
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Do I need a power of attorney for someone to manage my assets if I am unable?
In most cases, people should have a power of attorney as part of their estate plan. A power of attorney for Property allows you to appoint someone to act on your behalf with regards to your assets in the event that you are unable. There are two kinds: Continuing and Non-Continuing.
Non-Continuing Power of Attorney
A Non-Continuing power of attorney allows your Lawyer, who you have appointed, to manage your assets but it ceases to have effect in the event that you become mentally incapacitated and unable to manage your own affairs. These are generally used for specific purposes where an individual will be unavailable for a relatively short period of time. For instance, someone embarking on an extended holiday may appoint someone as their Lawyer to deal with banking and investing while they are away.
Continuing Power of Attorney
For most people, a Continuing power of attorney is appropriate for their estate plan. This allows someone to manage your assets and their power continues in the event of incapacity. A person (or persons) of your choosing will be able to act on your behalf and make decisions regarding your affairs in your best interests. This may involve small matters such as the paying of monthly utility bills or large matters, such as selling your home should it no longer meet your needs.
If you do not have a power of attorney, your family members will be subject to considerable delay and expense in getting someone appointed to act on your behalf; the Office of the Public Guardian and Trustee will be involved. Ultimately the person appointed may not be the person you would have chosen.
When preparing a power of attorney for Property, it is important to consider who to appoint and what type of powers they should have. The document must be executed in accordance with the legal requirements so it takes effect. These matters can be discussed with a Lawyer who can consider your specific needs, ensuring your power of attorney works with your estate plan.
Frequently Asked Questions
Do I need a will?
We have been married for the last 25 years but don’t have any children. Do we need a will, or would everything just go to the surviving spouse anyway?
Yes, you do need a will. Whenever you don’t have any children, under the statutory distribution scheme for individuals that die without a will, your spouse would receive your entire estate. However, you should still have a will for at least two reasons:
- Appointing an executor of your estate; and
- Making instructions for the distribution of your estate in the event that you’re predeceased by your spouse.
Appointment of an executor of your estate.
The executor named in a will has the legal authority to take possession of all your assets, do your final income tax returns, and deal with banks and government institutions. If you don’t have a will, a court would have to appoint an executor of your estate to deal with any assets that were not jointly owned, as well as any registered investments that did not have a named beneficiary. The process of appointing an executor usually takes few months, so in addition to incurring unnecessary costs, there will be an extended delay during which your spouse will not have access to the assets in your estate. In my experience, some financial institutions will waive a probate requirement if your spouse is the named executor and the only beneficiary of your estate, which could provide your spouse with ready access to some assets shortly after your death.
Distribution of your estate if you survive your spouse.
By having a will in place, you will make sure that your estate is distributed the way you want it to be in the event that your spouse passes away shortly before you, or in the event that you are unable to make a will after your spouse’s death. Under the statutory distribution scheme, if you don’t have a spouse nor children, your estate would go to your parents. Alternatively, if your parents are deceased, your estate would go to your siblings. This may not be your wish. For example you might want to leave part of your estate to your spouse’s family, or you may wish to skip your parents and siblings and distribute the estate among your and your spouse’s nieces and nephews, or make gifts to a charity or charities. No matter which option you choose, having a will can provide the peace of mind of knowing that your estate will be distributed according to your wishes.
Wills - How are they validated? Can I hand write my own?
I made my own hand-written will few years ago. I believe it’s valid and truly reflects my wishes, however my financial advisor told me I should get a proper will drafted by a Lawyer. Why should I do that?
Wills are legal documents that will dictate the distribution of assets after one’s passing and there are many reasons why wills should be prepared by a Lawyer specializing in this area of law.
Formal validity For wills to be valid and legally binding they have to be executed (signed) according to legal requirements. A Lawyer preparing your will would ensure that the document is executed properly and therefore legally valid and binding.
Comprehensiveness A Lawyer can make sure your will deals with all important matters, such as appointment of executor(s) and alternate executor(s), distribution of your assets, appointment of custodians and guardians for your children and setting up trusts for minor beneficiaries. Your Lawyer will also ensure your will gives executors enough powers to properly and efficiently administer your estate and follow your testamentary wishes.
Reflecting all your legal obligation
Under the law you are obliged to provide for your spouse and your dependents. Your Lawyer can advise you of your obligations to such persons.
Clarity of language
A properly drafted will should use language that is clear and precise in order to prevent any issues with interpreting your instructions contained in the document. Your Lawyer will make sure that proper language is being used to avoid any ambiguities and clearly reflect your intentions.
Preventing future challenges to your will
Having a Lawyer draft your will significantly reduces any risk of future legal challenge to its validity based on your legal capacity or any undue influence. When your legal capacity might be an issue, your Lawyer will gather and keep all the required evidence to prove you had the necessary legal capacity to make a will. He or she will also ensure there is no undue influence from any individuals, including family members that would affect any of the provisions of your will.
I'm married without children, do I need a will?
We have been married for the last 25 years but don’t have any children. Do we need a will, or would everything just go to the surviving spouse anyway?
Yes, you do need a will. Whenever you don’t have any children, under the statutory distribution scheme for individuals that die without a will, your spouse would receive your entire estate. However, you should still have a will for at least two reasons:
- Appointing an executor of your estate; and
- Making instructions for the distribution of your estate in the event that you’re predeceased by your spouse.
Appointment of an executor of your estate.
The executor named in a will has the legal authority to take possession of all your assets, do your final income tax returns, and deal with banks and government institutions. If you don’t have a will, a court would have to appoint an executor of your estate to deal with any assets that were not jointly owned, as well as any registered investments that did not have a named beneficiary. The process of appointing an executor usually takes few months, so in addition to incurring unnecessary costs, there will be an extended delay during which your spouse will not have access to the assets in your estate. In my experience, some financial institutions will waive a probate requirement if your spouse is the named executor and the only beneficiary of your estate, which could provide your spouse with ready access to some assets shortly after your death.
Distribution of your estate if you survive your spouse.
By having a will in place, you will make sure that your estate is distributed the way you want it to be in the event that your spouse passes away shortly before you, or in the event that you are unable to make a will after your spouse’s death. Under the statutory distribution scheme, if you don’t have a spouse nor children, your estate would go to your parents. Alternatively, if your parents are deceased, your estate would go to your siblings. This may not be your wish. For example you might want to leave part of your estate to your spouse’s family, or you may wish to skip your parents and siblings and distribute the estate among your and your spouse’s nieces and nephews, or make gifts to a charity or charities. No matter which option you choose, having a will can provide the peace of mind of knowing that your estate will be distributed according to your wishes.
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