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Wills and Estates, Powers of Attorney

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FREQUENTLY ASKED QUESTIONS

CAN I WRITE MY OWN WILL OR USE A PREPARED KIT?

It is true that you can write your own will. However, you might make inadvertent mistakes. Worse, you may omit important elements for the administration of your estate. You could use a do-it-yourself kit. Again, it may be difficult to have it accepted for Administration by the Estate Office of the Ontario Superior Court (or what people often refer to as probate) unless your witnesses attended with a lawyer or notary to swear their witness statements, which are called affidavits.

Errors and omissions can delay or even prevent the administration of your estate, with the effect that the small amount of money you thought you were saving actually led to a costly situation for your survivors -- the executors and beneficiaries.

Wills are very reasonably priced. You get the benefit of professional advice tailored to the specific facts of your scenario. Your lawyer will act as the witness to your will and will complete the necessary affidavits to authenticate your will. You lawyer will also keep a copy for safekeeping in case a dispute should arise respecting your intentions.

Having a lawyer prepare your will provides peace of mind and is excellent value for money.


WHAT HAPPENS IF I NEVER COMPLETE A WILL OR IF I DO MY OWN WILL?

Intestacy describes the situation if you die without a will, or if the will you did create is deemed invalid. When this happens, your estate is distributed according to the Succession Law Reform Act (SLRA). The SLRA determines who will receive you estate and in what proportions.

If there is a spouse, the first $200,000 is reserved for the spouse of the deceased.
If there is no spouse and no children, the estate passes to the parent(s).
If there are no parents, the estate passes to the brother(s) or sister(s).
If there are no siblings, the estate passes to the nephew(s) or niece(s).
If there are no nephews or nieces, then the SLRA defines next of kin.

If there is no natural beneficiary, the estate may actually go to the province. If you do not want the SLRA to determine who inherits your estate, or if you don't want your estate to default to the province, it is a very important reason to have a lawyer prepare a will for you.


MY LAST WILL WAS DONE IN 1986? IS IT STILL GOOD?

The Ontario Family Law Act allows a person to exclude an inheritance from the calculation of the Net Family Property. This is important because, should there be a divorce, that inheritance received by one spouse will not be subject to division with the other spouse.

However, the will needs to contain an explicit statement that the legacy to the beneficiary is to be treated as excluded property. Without this statement, the beneficiary's spouse might otherwise be entitled to a divided share of the inheritance.

Wills that were written prior to the coming into force of the Ontario Family Law Act, in 1986, should be updated accordingly.


WHAT IS A POWER OF ATTORNEY FOR PERSONAL CARE?

To receive or withdraw medical treatment, it is necessary to give consent. Should you become incapacitated for some reason, you would not be able to give the consent necessary to receive or withdraw medical treatment. Trusted persons can give such consent on your behalf if you have granted them the power of attorney for personal care.

A Power of Attorney for Personal Care is usually a brief document that can be prepared very easily and inexpensively. You can specify whether or not you wish extraordinary measures be taken to resuscitate you. You can also specify whether or not you wish to have your life medically extended.

A Power of Attorney for Personal Care provides you with certainty that a trusted person will act on your behalf. If you have not granted a Power of Attorney for Personal Care and you are unable to consent to medical treatment, a representative would file an application with the Ontario Consent and Capacity Board to appoint a substitute decision-maker for you. Your consent is not required in such a proceeding and you may have no legal or personal control over such an appointment. Obviously, such a proceeding would take a certain amount of time. Power of Attorney for Personal Care provides your family and loved ones with peace of mind.

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