We assist clients with drafting of Wills, Powers of Attorneys and setting up family trusts.
Having a Will is very important. Without a Will government legislation determines how your estate will be divided and who is entitled to apply to be your Executor/Trustee. This legislation may not correspond with your wishes and its basic strategy may not provide adequately for your family.
Estate Planning Considerations
Appointment of Executor/Estate Trustee of the Estate
Who will be responsible for administering your Estate. The Executor/Estate Trustee is responsible for dealing with your funeral, the distribution of your estate and the managing of any trusts set up through your Will. It is important to name an individual you trust and you should consider naming an alternate as well in the event that the primary Executor becomes unable or unwilling to carry out these duties.
Guardianship
If you have minor children (under the age of 18) you need to consider who will take over their custody and guardianship in the event of the death of you and your spouse. Guardianship decisions can be the most difficult decision that an individual makes and it is extremely important that you consult the potential guardian before appointing them.
Specific Gifts
Do you wish to leave specific items or cash bequests to certain individuals or charities? If it is an item or personal belonging that you are leaving it needs to be properly identified so your Executor can properly carry out these wishes.
Residue
How do you want the residue of your estate to be distributed? The residue represents the bulk of your estate after any specific gifts in your Will are taken into account and all debts and taxes have been paid by the estate; the remaining estate is referred to as the residue. The residue can be divided in a multitude of ways but the most common is for the residue to be left to the spouse with a provision that if the spouse is not then living that the residue be divided equally among children.
Trusts for Children/Disabled Beneficiaries
Are there minor beneficiaries or beneficiaries under a disability? If so do you want monies to be held in trust and to be used for their benefit, health and education and if so to what age? The youngest that a beneficiary can receive monies directly is 18 but if you want it held until a later age be it 21, 25 or 65 this must be provided for in the Will.
Failure of Gifts/Common Disaster Clause
Do you want to provide for how your estate is to be distributed if you were in a common accident and your immediate family did not survive?
Net Family Property Clause
In Ontario you can include a clause in your Will that would prevent your beneficiary’s spouse from claiming an interest in the monies that was left to that beneficiary if they were to divorce or separate. Do you wish to exclude your beneficiary’s spouse?
Powers of Attorney
Powers of Attorney are an important part of the Estate Planning process and should be given as much consideration as the drafting of a Will. There are two forms of Powers of Attorney.
Power of Attorney for Property
If you became incapacitated who would you want to be able to deal with your property whether it is having access to your bank account to pay bills or the ability to sell your home or investments in order to pay for your health care costs and/or support? Without a power of attorney for Property all assets of which you are the sole owner would be frozen and it would require the involvement of the Courts to allow someone to access them on your behalf. You may also wish to consider appointing an alternate in the event that the first named attorney becomes unable or unwilling to act.
Power of Attorney for Personal Care
Who would you want to appoint to make decisions about your health care and well being if you were not able to do so? What extent of life support would you want them to undertake if you were in vegetative state or had a terminal illness? Without a Power of Attorney for Personal Care your family may end up fighting over who decides these issues and the nature of the decisions being made on your behalf. You may also wish to consider an alternate appointment for your Personal Care Power of Attorney.