In addition to drafting your documents, Chris provides advice to Estate Trustees and beneficiaries on how to navigate through the rights and obligations created by Wills, Powers of Attorney and statute law in the context of an estate administration.
A Will is a legal document (testamentary instrument) that is writing, signed by the testator (person making the Will) in front of two witnesses. The Will sets out the testator’s wishes on how to distribute his/her property after death. In order for the Will to be valid, the testator must understand (1) the nature and extent of his/her assets; and (2) the intended beneficiaries.
In drafting a Will, a lawyer must be cognizant of all the various statutes and outside factors that will affect a testator’s intended distribution including: support of dependents; Family Law Act; trust obligation; domestic contracts; shareholder agreements; private corporations; ownership as joint or tenants in common; beneficiary designations on investments; RRSP; RRIF; Pensions; assets in foreign jurisdictions; testamentary capacity; marriage; and divorce.
An “intestacy” occurs when a person dies without a valid Will. In the Province of Ontario there is statute law that dictates how to distribute the property of the deceased person. There is a common misconception that the “government” receives the property of every person that dies without a Will. In reality there is a formula that is used to determine which next-of-kin will enjoy a share of the estate in the event of an intestacy. Spouses, children, grandchildren, parents, siblings, nieces, and/or nephews all rank higher than the government. It is only in the rare instance that there are no next-of-kin that the estate would revert to the government.
Powers of Attorney
A Power of Attorney is a document that operates while a person is alive, but is “incapable” of managing his or her affairs. The “grantor” gives the “attorney” the authority to act on his/her behalf person during periods of incapacity. There are two types of powers of attorney in Ontario:
- Continuing Power of Property which is used for conducting financial affairs.
- Power of Attorney for Personal Care which is used to make health cares decisions.
In choosing to create a Power of Attorney, the grantor selects an attorney who the grantor trusts to be responsible to manage their personal finances and health care decisions, when they are no longer capable of making these decisions.
In the event that there is no valid Power of Attorney, and a person becomes incapable of managing his/her affairs, there are two choices: obtain an order for guardianship from a Superior Court Judge; or ask the Office of the Public Guardian and Trustee (PGT), (Ontario Government) to assume responsibility as a statutory guardian.