ESTATE PLANNING

Without a Will the Law Dictates what Happens to Tour Estate in the Event of Your Death

and this may not reflect your wishes. It is particularly important for unmarried couples to make Wills as this is the only way to ensure proper provision for each other on death. Nor is it necessarily true that if you are married, your spouse will inherit your whole estate. Not making a Will could leave your loved ones in a difficult position at what is already a stressful time.

If you haven’t already made a Will, or if yours has become outdated due to a change in your circumstances, for example marriage, separation or parenthood, speak to us today. You should review your Will every 3 to 5 years to ensure that your will effectively accords with current wishes. You can change your Will at any time so long as you have capacity to do so. We make no charge to review your Will, even if it was drafted by another firm.

Another important aspect of your Will is to choose guardians for your children and decide who will be responsible to wind up your estate. We are happy to visit you at your home or in hospital if you are unable to attend at any one of our offices.

There are many legal strategies involved in estate planning, including wills, revocable living trusts, irrevocable trusts, continuing powers of attorney, and Power of Attorney for personal care.   Most people are surprised to learn that they actually do have a plan. In the absence of legal planning otherwise, their estate will be distributed after death according to Ontario’s laws of intestacy. Of course, this may not be the plan they would have chosen. A properly drafted estate plan will replace the terms of the Ontario estate plan with your own.

 

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Wills | Power of Attorney | Estate Planning | Probate

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    Preparing For Your Future


    There are 3 documents you can prepare that may be helpful to friends, family and health care providers.   

    1. A Will
    2. A Continuing Power of Attorney for Property
    3. A Power of Attorney for Personal Care

    1. Your Last Will and Testament

    A person’s will is a written document that sets out the person’s wishes about how his or her estate should be taken care of and distributed after death. It takes effect when the person dies.

     An estate is the property that a person owns or has a legal interest in. The term is often used to describe the assets and liabilities left by a person after death.

    A trust is created to hold property or assets for the benefit of a particular person called the beneficiary. It is managed by a person called a estate trustee /executor  who has an obligation to deal with the property for the beneficiary of the trust. There are many different kinds of  trusts 

    The beneficiaries are the people named in the will to inherit the estate. This could be money, property or other benefits when you die. You may name beneficiaries in your will, insurance policy, retirement plan, annuity, trust or other contracts.

     

    Legal advice when making your will

    In Ontario you do not necessarly need a lawyer to write up your will.

    However, a lawyer can provide advice and expertise in drafting a will that truly reflects your wishes. 

    While a lawyer’s time and advice cost money, a lawyer can ensure that you’ve considered all aspects of your estate’s distribution – and draft a will that reflects your wishes.

    Email or subscribe for your ABSOLOUTLY FREE – Copy of Will Kit. Complement from Highclass Family Law.

    How much does a will cost?

    How much does a will cost? 

    The cost can vary widely depending on how nuanced the client wants the document to be. A simple will might only require an hour of attorney time, including the initial client meeting. In those instances, the total fee is often a few hundred dollars.

    Yet other clients want a highly detailed, individually crafted document, or they ask several hours-worth of estate planning questions. Due to the increased number attorney attorneys spent on the project, those cases can result in significantly higher legal fees. We try to advise clients of the escalating costs in these situations. We want satisfied clients, not unhappily surprised ones.

    How a lawyer can help

    When you are preparing your will, a lawyer can

    • understand what you need to do and why,
    • state your true wishes so they will be carried out the way you want them to be,
    • make sure your will follows the laws of your province,
    • reduce taxes and other costs your loved ones may face after your death,
    • make sure your estate can be quickly settled, and
    • choose a guardian to care for your children.

    Your lawyer can also make notes on your mental capacity to confirm that you are mentally fit to make a will.

    The above statement is from

    GetSmarterAboutMoney.ca is an Ontario Securities Commission (OSC) website that provides unbiased and independent financial tools to help you make better financial decisions.

    Do you charge flat fees, or just hourly rates?

    Do you charge flat fees, or just hourly rates? 

    We do sometimes perform flat-fee estate planning, including will-drafting. However flat fees generally do NOT result in cost-savings to clients. For flat-fee projects, attorneys at most firms, including ours, charge more than the estimated hourly cost for the project. In essence, flat-fee clients pay a slight premium, but they bear no risk of cost overruns. Most estate planning clients choose hourly pricing.

    Do-it-yourself will kits

    In Ontario you do not need a lawyer to write up your will.

    Online Do-it-yourself will kits are attractive because of their low cost. Most of these kits are under $50, compared to legal fees to have a lawyer draft your will.

 While some kits have been approved by experienced lawyers, and contain clear and comprehensive drafting instructions, they can’t replace years of legal training and experience.

    The money you save by using a kit will seem insignificant if your estate incurs thousands of dollars in legal fees to settle disputes or clarify your wishes.



    Although lawyers can and do make drafting errors from time to time, they also have malpractice insurance to cover the cost of mistakes that may occur. This is important protection – and something your estate won’t have if you make a will yourself.

    The above statement is from

    GetSmarterAboutMoney.ca is an Ontario Securities Commission (OSC) website that provides unbiased and independent financial tools to help you make better financial decisions.

    However, If you are confident enough and want to do your own will – Email / Subscribe to Highclass Family Law and receive your ABSOLOUTLY FREE – Do-it-yourself  Will Kit.

    Role of the executor

    After someone dies, the executor makes sure that the wishes stated in the deceased person’s will are fulfilled.  An executor is a person named in a will.

    An executor’s main duties:

    1. Identify and manage assets
    2. Locate beneficiaries
    3. Put the will through probate
    4. Settle bills,  pays the dead person’s (deceased’s) debts and taxes
    5. Distribute assets to the beneficiaries.
    If, you are an exceutor, consider hiring a lawyer

    If you agree to be the executor, consider hiring a lawyer to do the paperwork and advise you of your duties.  If you do, the lawyer’s fees will be paid from the estate’s assets.  It’s a good idea to hire a lawyer for any estate involving the distribution of assets through a will, where a grant of probate is required.

    For most estates, it’s also a good idea to also hire an accountant to help with the several tax returns that need to be filed. Proper filing of returns and payment of taxes is one of the executor’s responsibilities.

    What does it mean to probate an estate?

    Probate is the process of applying to court and getting it to rule that a will is legally valid. An estate consists of any land, house, money, investments, personal items, and other assets that the dead person (the deceased) owned (with some exceptions).

    What happens if I die without a will?

    What happens if I die without a will? 

    If you die without a will, your property passes to your relatives through ‘intestate succession’. ‘Intestate’ means without a will, whereas ‘testate’ means with a will. The statute on intestate succession is ???????? (ACT?)and it states exactly who receives what shares of your property.

    Some people choose not to draft a will because they do not mind intestate succession. However even those in that situation might want to reconsider their position. A will offers many potential benefits beyond control over asset distribution, such as decreased probate expenses through non-intervention powers, the ability to appoint a chosen personal representative, and the ability to designate someone as the preferred custodian of minor children.

    2. Powers of Attorney

    There are two types of Power of Attorny.

    [a] Non-Continuing Power of Attorney is only valid as long as the donor is capable of acting for him or herself. If the donor becomes mentally incompetent (loses capacity), the ordinary Power of Attorney ends.

    [b] A Continuing Power of Attorney remains valid even if the donor later becomes mentally incompetent. The donor must be competent at the time an enduring Power of Attorney is made.

    In either case, the Power of Attorney becomes invalid when the donor dies. A Power of Attorney cannot be used to bequeath property upon the death of the donor. A power of attorney is a legal document giving another person (the attorney-in-fact) the legal right (powers) to do certain things for you. What those powers are depends on the terms of the document.

    Power of Attorney

    There are two types of Power of Attorny.

    [a] An Ordinary Power of Attorney is only valid as long as the donor is capable of acting for him or herself. If the donor becomes mentally incompetent (loses capacity), the ordinary Power of Attorney ends.

    [b] An Continuing Power of Attorney remains valid even if the donor later becomes mentally incompetent. The donor must be competent at the time an enduring Power of Attorney is made.

    What is the difference between a ordinary (non-continuing) Power of Attorney and a Continuing Power of Attorney

    1. Non-continuing power of attorney for property

    This is used in specific situations for a specific length of time (for example, when you’re out of the country). You outline the specific tasks your attorney is allowed to do on your behalf, and for how long.

    A non-continuing power of attorney is automatically revoked if you become mentally incapacitated, so it’s not a substitute for a continuing power of attorney. Make sure you have a continuing power of attorney in place as well.

    2. Continuing power of attorney for property

    This authorizes another person to act on your behalf in financial matters if you become mentally or physically incompetent. If you are unable to act on your own behalf, your attorney can:

    • pay your bills,
    • apply for benefits you may be entitled to as a result of your disability,
    • collect pension and other income you’re entitled to,
    • monitor your investment portfolio, and
    • ensure your assets are otherwise protected.

    You can make the power of attorney as specific as you want. Just make sure it’s broad enough for your attorney to carry out your wishes and manage your affairs effectively. This usually means giving fairly broad powers to manage your financial affairs in case of incapacity.

    Do the Attorney(s) under POA get paid?

    Your attorney under a continuing power of attorney for property has a statutory right to be paid. If the power of attorney document does not address payment, your attorney will be entitled to:

    • 3% of money received by the attorney,
    • 3% of money paid out by the attorney on your behalf, and
    • 3/5 of 1% of the average annual value of the assets covered under your power of attorney.

    You can specify a different payment amount by writing it in the document. You may also not want to pay your attorney anything – such as when a close family member takes on the role without expectation of payment. Be sure to include this in the document, as they will have a right to payment otherwise.

    Your attorney under a non-continuing power of attorney for property or a power of attorney for personal care has no statutory right to be paid. However, you can include payment terms in your power of attorney documents if you want to pay them for their services. Your attorney can also apply to a court to ask for payment for their services.

    Do I need a Lawyer ?

    The Ontario government provides standard power of attorney forms, but you may want to have a lawyer draft a power of attorney that specifically meets your needs and circumstances. At the very least, consult a lawyer before signing a power of attorney. They will ensure the document clearly states the conditions under which it takes effect.

    Call: Sabrina Hussain @ 416.444.4252. for more information

    3. Power of Attorney for Personal Care ( Advance Directives)

    A healthcare directive is a legal document through which a capable person gives another individual the authority in advance to make decisions on his or her behalf while alive.2 Typically, it allows the authorized individual to make healthcare decisions when the patient becomes incapable. And, it usually includes instructions that the appointee must follow when making these decisions.

     

    Power of Attorney for Personal Care

    As mentioned above – POA for Personal Care  lets someone else make health-care decisions on your behalf if you become incapacitated.

    These health-care decisions can be difficult, involving your quality of care and possibly your continued life support. Be sure you choose an attorney who is prepared to handle the emotional toll that these responsibilities may take.

    If the decision is about medical treatment or admission to a long-term care facility, a health professional must determine that you are incapable of these decisions before your attorney can act.

    What is the difference between a Last Will and a Health Care Directive?

    A Last Will is used to distribute your property after your death. A Health Care Directive allows you to specify, in writing, your health care preferences for the time when you no longer have capacity to provide consent. A Last Will cannot be used to specify what type of medical treatment you want.

    Who can make a health care directive?

    Generally, any person who has the ability to understand information that is relevant to the making of a personal care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision may make a personal directive. 

    • Ontario – at least 16 years of age;
    Do I need a health care directive if I already have a last will and testament?

    Yes. Health care directives and last wills are very different. Your last will and testament deals with the distribution of property after your death. In contrast, a health care directive deals with your health and personal care and applies when you are alive and cannot communicate your wishes.

    Will my health care directive be legally binding?

    Once properly signed and witnessed, your health care directive will be legally binding on family, friends and health care personnel (to the extent your directions are consistent with accepted health care practices). However, health care practitioners are not required to ask whether you have signed a directive or search for a directive. Make sure that your family, friends and health care representative know that you have signed a health care directive and let them know where it can be found.

    Do I need a lawyer?

    The Ontario government provides standard power of attorney forms, but you may want to have a lawyer draft a power of attorney that specifically meets your needs and circumstances. At the very least, consult a lawyer before signing a power of attorney. They will ensure the document clearly states the conditions under which it takes effect.

    Call: Sabrina Hussain @ 416.444.4252. for more information

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