Frequently Asked Questions

When I'm planning my estate, what documents do I need?

You need three documents when you are planning your estate. You need a Will, a Power of Attorney for Property (in Ontario, a Continuing Power of Attorney for Management of Property) and a Power of Attorney for Personal Care. All 3 of these documents need to be looked at regularly to make sure that they are up to date with any changes in your circumstances. You should also make sure that life and disability insurance are adequate for your family's needs.

It is important to have an experienced Estate lawyer help with your estate planning as there may be ways to help beneficiaries with taxes by using trusts. Also you need to re-examine your estate plans if you have remarried or if your assets have changed significantly.

What is a Power of Attorney for Property?

If you are unable to make decisions about your investments, banking, and real estate because of mental incapacity or because you are temporarily unavailable to sign documents, a Power of Attorney for Property designates one or more people to make those decisions for you. This document saves both time and money. If, at a later date when you are incapacitated, and you need a guardian for your property, your family will have to apply to the court to have someone appointed to act for you. This procedure can cost thousands of dollars and can often take months to get to court. During this time, important decisions cannot be made that could have been to your benefit or that of your estate.

What is a Power of Attorney for Personal Care?

Sometimes this document is called a "living will." In this document you appoint 1 or 2 people who have the authority to make decisions for you regarding your health if you can't make those decisions yourself. Hospitals need guidance for treatment if you cannot make the decisions yourself because you are unconscious or unable to communicate. These decisions can cover your nutrition, your residence and your personal care.

The Power of Attorney for Personal Care can also include your decisions about being kept alive artificially when there is no expectation of recovery. These requests are called "advanced directives" or "medical directives."

It is important that your family know the existence and location of this document so that your wishes can be carried out. Your family will feel better knowing that important decisions are being made according to your specific requests.

What is an executor and what do they do?

The executor's job is to make sure that all the provisions of your will are carried out. Many people have more than one executor. Executors arrange the funeral and make sure that any of your family's immediate financial emergencies are met.

Depending upon the complexity of the estate, the executors' job can last at least a year. The first thing they should do is make sure that they see a lawyer that specializes in wills and estates because they will want to ensure that their own liability is protected. They will need a comprehensive checklist of duties to make sure that they have done everything possible to protect the estate's assets. These duties can include cancelling credit cards, making an inventory of the estate's assets and making sure that taxes and all debts and creditors are paid. They will also need to make sure that any property is insured and protected until it is sold.

What is probate?

In Ontario, probate is called a "Certificate of Appointment of Estate Trustee with a Will." The court certifies that the will is the true will of the deceased and that the executors have been designated to act for the estate. Sometimes financial institutions will require probate before they will release any funds, especially if the amount of money is substantial. Often probate is required for real estate transactions.

There is a fee for having a will probated. Ontario charges the most of all provinces under its Estate Administration Tax. To find out how the Ontario Estate Administration Tax is calculated, click on the following link. http://www.attorneygeneral.jus.gov.on.ca/english/estates/estates-FAQ.asp

There are estate-planning choices that can be made to help avoid the necessity for probate. If you consult an expert wills and estates lawyer, he or she can discuss these choices with you and determine if they are appropriate for your situation.