What is a will?
A will is a legal document setting forth your wishes regarding the distribution of your property and the care of any minor children in the event of your death. A person who makes a will is known as a testator.
What are the legal requirements of a will?
To ensure the testator’s wishes are carried out, a formal will must be in writing, signed by the testator (who must be mentally competent at the time of signing), and witnessed by two people who must also sign the will.
What is the benefit of hiring a lawyer to help with my will and estate planning?
A lawyer will draft a proper will that clearly lays out your wishes. Hiring a lawyer will provide peace of mind that your will is legally enforceable and will reduce complications for your family after you pass. Our estate planning team will help you protect your family, friends, and property after you are gone.
What is an enduring power of attorney?
If you lose your mental capacity while still alive, your enduring power of attorney will give another person, called your “attorney”, the ability to handle your property and financial affairs on your behalf.
Who should I give my power of attorney?
Your spouse will usually be best suited to be your attorney. If your spouse is unable or unwilling to act as your attorney, a family member or close friend that you trust to act with your best interests in mind is the best choice.
What is a personal directive?
A personal directive is a legal document allowing a trusted individual to make decisions regarding your personal life should you lose the mental capacity to do so. Whereas a power of attorney allows an individual to make your financial decisions while you’re alive and incapacitated, the personal directive allows an individual to make your personal decisions.
What is an executor of a will?
An executor plays an important role in the will of the deceased. The executor will have the legal responsibility to carry out the instructions in the will. This typically includes disposing or transferring of property, paying remaining bills and taxes and ensuring the wishes laid out in the will are fulfilled and the property is distributed properly.
An executor is the person appointed to carry out the provisions of a will. The executor is the person who will collect the deceased’s assets, pay their debts and distribute any gifts and the residue of the estate.
An executor may also be referred to as the deceased’s “personal representative”, which term encompasses an executor or an administrator or judicial trustee of the deceased’s estate.
Who should be my executor?
An executor is most commonly a spouse or a child. An executor is a person the individual trusts completely, is diligent, and acts with integrity.
What is probate?
Probate is the process the court takes in distributing your estate. The court uses the assets in your estate to pay off any remaining debts and then distributes the remainder to the beneficiaries. If the deceased has prepared a properly drafted will, the estate will be distributed according to that will, making the probate process much simpler.
How long does probate take if I don’t have a will?
The length of the probate process varies significantly based on the complexity of the estate in question. The amount of disagreement between the family and other loved ones will also determine the length of the process.
How much will probate cost the estate?
How can I dispute a will?
In disputing a will, you have two options: challenge the validity of the will or apply to vary the will.
For what reasons would a will be varied?
A testator has both a moral and legal obligation to ensure his or her dependents are adequately provided for. Dependents include spouses, adult interdependent partners and children. If the court finds that a will does not make adequate provision for a dependent, it may vary the will. The courts will consider a large variety of factors when determining what is adequate provision, including the dependent’s relationship with the deceased, the dependent’s personal characteristics and resources, and what reasons the deceased had for making or not making dispositions the dependent.
For what reasons would a will be invalid?
A will’s validity may be challenged because of the mental capacity of the deceased at the time of signing the will, and the conditions under which the will was signed which may have compromised the testator’s free will. A will may also be invalid for failure to meet the required signing and witness formalities or be partially invalid because of its contents. It is best to consult your estate lawyer for assistance in preparing a valid will or if you have concerns regarding the validity of a will.
Who can challenge a will?
A person who has standing to challenge a will is usually a beneficiary under the will or someone who stands to benefit if the will is varied or invalidated.
Can I challenge the actions of a personal representative?
The personal representative of an estate has certain legal obligations, regardless of whether they are administering an estate with or without a grant of probate or administration. If the personal representative is failing to discharge all their duties and liabilities, legal steps can be taken to address this.
What is a Capacity Assessment?
Capacity assessments are conducted by trained healthcare professionals when there are legitimate reasons to believe that someone does not have the ability to make their own decisions. The capacity assessor will determine whether someone understands the facts that they should consider when making decisions and what the results of their decisions could be. A capacity assessment helps determine whether or not a Personal Directive and/or Power of Attorney should be enacted.
What is a beneficiary?
A beneficiary is a person who receives or is entitled to receive a beneficial disposition of property under a will or on an intestacy.
Can a beneficiary in my will be my executor?
Yes. There is nothing preventing an executor from also being a beneficiary, as long as they are not faced with any conflict of interest. If there is any danger that they will not treat all beneficiaries, including themselves, as equals, then you should consider a different executor.
How do I choose an executor?
Your executor should be a person you trust to collect your assets, pay your debts and distribute the residue of your estate. In addition, your executor should have the knowledge, skill and time to be able to carry out these tasks. This is particularly important for large or complicated estates.
You should review and update your will regularly, including your choice of executor(s), especially in response to changing circumstances such as marriage, divorce, birth of children and moving interprovincially or internationally.
How much does will and estate planning cost?
There is no set rate for estate planning. The cost will vary depending on the complexity and time required to plan your estate.
What is an Estate Inventory Checklist?
Completion of a household and personal inventory is an important but often overlooked task by many families. An Estate Inventory Checklist is a document we provide our clients with to assist with the organization and documentation of their estate. It provides you with one convenient place to document a list of all of your assets and liabilities, account numbers, policies, location of documents and other pertinent information. Not only is completing an Estate Inventory Checklist extremely helpful for the executor (NTD: link to executor) of your estate, it can also serve as a useful recovery tool in claims for fire or theft.
What does will and estate planning usually include?
When planning for your estate, your trusted estate lawyer will assist you in creating your power of attorney, will, and personal directive.
What do I do with my will once it is complete?
Ensure you have certified or notarized copies and give them to individuals you trust, like your lawyer or executor. Make sure the original copy of the will is kept in a safe place.
How do I cancel my will?
Creating a new will cancels any previous wills. You may also cancel your will with a written statement indicating you wish to do so. Having multiple wills could substantially complicate matters once you pass. To avoid this complexity, it is important to consult a lawyer who will properly guide you in cancelling your will and creating a new one.
How do I change a will?
If you want to alter a provision in your will it may not be necessary to draft an entire new will. Consult your trusted estate lawyer to help make proper amendments to your will and advise when you are better suited to create a new will rather than changing the previous one.
What happens if I don’t have a will?
If you do not have a will, the courts will oversee the distribution of your assets based on a formula. This formula will typically split your assets between your surviving spouse and children. Depending on the title to your house, the formula may require your spouse sell their home and split the proceeds between the rest of your family. Properly planning your estate will avoid any of these unnecessary complications.
What is my role as executor of an estate?
As executor, you are accountable to the beneficiaries of the estate. You are expected to file taxes, protect the property of the estate (which includes keeping money and investments properly invested in low-risk investments) and filing to probate the will. However, this list is non-exhaustive and an executor may have more responsibilities depending on the particular circumstances. If you are unsure of your roles and responsibilities, contact your estate lawyer for proper guidance.
Does an executor get paid?
An executor is typically entitled to a fee, as approved by the court, prior to distribution of the estate. The level of payment is based on the size and complexity of the estate.
Do I have to act as executor if I am named in the will?
You always have the option to decline acting as an executor. If there are alternate executors named in the will, then they will take your place; if not, then the courts may appoint someone to distribute the estate.
Can an executor change the will?
No. An executor is meant to administer the estate in accordance to the wishes of the deceased as laid out in the will.
If my loved one has passed away, where can I find their will?
If you are unable to locate the will on your own, you may wish to contact the law office that wrote the will. They may have record of where it is kept or even have a copy of the will.
How can a lawyer help with the administration of an estate?
Losing a loved one can be a difficult process, but an estate lawyer can ease the headaches surrounding administration of the estate. Whether by providing guidance to ensure proper steps are taken or administering the will on your behalf, your estate lawyer is there to help.
Who pays the legal fees for the administration of an estate?
The fees are paid out of the estate. The executor does not pay any of the fees out of pocket.
What is my role as power of attorney?
As an attorney, you are responsible for the financial matters of the incapacitated person who designated you. You must act in the best interest of the person, keep their finances and assets separate from your own, and keep accurate and detailed records of the dealings you undertake on behalf of the person. Once the person has passed, your duties will be taken over by the executor named in their will.
What is the limitation period to challenge a will or the actions of a personal representative?
Limitation periods vary depending on the specific claim to be brought, the person who is bringing the claim, and the status of the administration of the estate. If a mandatory limitation period is missed, the right to pursue a claim is lost. It is important to seek professional legal advice as soon as you suspect that there is a problem, to ensure that any claim is started within the applicable limitation period.
Can anyone seek Medical Assistance in Dying?
No. A person may only receive medical assistance in dying if they meet specified criteria, which include the following:
- They must be eligible for health services funded by a government in Canada (but for any applicable minimum period of residence or waiting period would be eligible).
- They are at least 18 years of age.
- They have a grievous and irremediable medical condition.
- They have made a voluntary request for medical assistance in dying, that was not made as a result of external pressure.
- They have given informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.
If the person loses capacity, will medical assistance in dying still be an option?
Yes. The lose of capacity near end of life is often an issue in these circumstances. Only if death is reasonably foreseeable and you anticipate lose of capacity becoming an issue then you can complete a “Waiver of final Consent”. This waiver is an agreement with your medical practitioner to provide the medical assistance in dying despite the loss of capacity and the inability to provide final consent.
Can I include a request for Medical Assistance in Dying in my Will or Personal Directive?
No. A request for medical assistance in dying must be made through the legislated channels and can not be done through your will or personal directive.