Court Litigation

A will is a written document with instructions about how to distribute your assets upon your death, who will administer your estate, and who will be a guardian for your children who are minors. People generally have to be 18 or older and be of sound mind to make a will. The will should be updated dependents of their own. You can appoint your adult children as your trustees gift directly to grandchildren.

If you don’t have a will at death, probate procedures are more complicated, and the distribution of assets is determined by legislation in the jurisdictions where you may live and own assets, which may not be what you want. Also, a lack of will may prompt inter-family strife as family members argue about your intentions, which are not set out in writing. No guardian will be named for your minor children. The court appointed administrator will not have the broader Trustee powers normally included in a will.

Wills generally fall into two categories: “mirror” spousal wills and individual wills. “Residue” means the assets left over after debts and taxes are paid, and/or what is not disposed of in other ways (for instance, joint assets go to the surviving owner, and some assets, such as life insurance policies, allow you to list beneficiaries directly on the assets). We offer very reasonable flat fees for basic mirror spousal will packages and individual will packages. Basic wills include provisions for the appointment of two estate trustees, either acting together or one primary and one substitute; one guardian for minor children; bequest to spouse and children of the marriage; and specifying the preferred age of inheritance. Our basic wills packages do not include specific bequests of assets, disaster provisions, funeral instructions or organ donation and/or discretionary trusts. We can also prepare more complicated wills and secondary corporate wills, at additional cost.

We usually schedule the first appointment for estate planning (about 45 minutes) to obtain the information we need to prepare your will and powers of attorney. We schedule a second appointment for signing of the wills and powers of attorney (there are two kinds of powers of attorney: Continuing Power of Attorney for Asset Management/Property, and Power of Attorney for Personal Care/”Living Will”). We prefer to schedule the will signing appointment about one week after the first appointment.

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You may wish to consider who will act as an alternate trustee (executor) if your primary trustee is unable or unwilling to fulfill the role; a guardian for the children (not necessarily the same person(s) as the trustee); and whether you wish to have a “disaster clause” that dictates how your estate will be distributed in the event of a disaster (death of all immediate family members). For the powers of attorney, you must select a primary attorney and a substitute.

Our most cost-effective wills and powers of attorney package is the spousal wills package, which includes two mirror spousal wills, two powers of attorney for property and two powers of attorney for personal care. This is approximately 50% of standard market rates. We can prepare a will package on a “rush” basis, and we can visit a home, hospital or nursing home for will signing if necessary (additional costs apply).

We ensure that the original documents are delivered to you, where they belong, upon signing. We do not keep the original will and powers of attorney. We keep copies in our files for at least seven years (as required by the Law Society of Upper Canada), and we scan your documents and save them on our server indefinitely. We can explain this in detail when you schedule your appointment or when you meet with the lawyer.

A power of attorney is a document in which you appoint one or more people to act on your behalf in case you lose the legal capacity to deal with your own affairs.

The Power of Attorney for Asset Management/Property gives the person(s) appointed the right to do everything you can do, in your place, except make a Will. The Attorney is supposed to spend your money only on you and your legal obligations (like supporting your children), but there is no formal supervision of the Attorney. That said, your Attorney should keep an “accounting” with respect to the management of your financial affairs. You can end (revoke) a Power You may well ask, given the potential for abuse, why should you have a Power of Attorney? The answer is that you, even if you are a young adult, could potentially lose the ability to deal with your own affairs through illness or accident. If you don’t have a Power of Attorney, and you become incapacitated, the government in your province (the Public Guardian and Trustee (PGT) in Ontario) will step in and manage your affairs, even if you have a spouse and/or family members who are ready, willing and able to do so. After, Application procedure made by your spouse or other family member, the Public Guardian and Trustee may appoint one or more individuals to manage your affairs. This costs money, because the government usually charges for the management services, and there may be a cost involved in the appointment of an institutional trustee or administrator to manage your affairs. There may be inter-family conflict as to who should act on your behalf and/or what should be done. The person chosen to administer, on your behalf; your affairs in the absence of a Power of Attorney for Asset Management signed by you; may not be the person you would choose.

A Power of Attorney for Personal Care/Living Will is a document in which you state who can make decisions effecting your health and personal care if you are incapable of doing so. That can include giving or withholding consent to medical treatment, housing, food, hygiene, clothing and safety. Also, if your feel strongly that you would not want to remain alive in a vegetative state for any extended period of time, these instructions should be stated in a Letter of Wishes that forms a Schedule “A” to the Power of Attorney.

As with the Continuing Power of Attorney for Asset Management, if you do not have a Power of Attorney for Personal Care/Living Will, the government agency, the Public Guardian and Trustee (PGT) in Ontario, may step in and take over decision- making regarding your health care, even if you have a spouse and/or family members that are ready, willing and able to do so. After an Application procedure (which is about one (1) year) made by your spouse or other family member, the Public Guardian and Trustee may appoint one or more individuals to manage your health care, act on your behalf and/or make decisions about your health care. The person chosen by the PGT to manage your health care may not be the person you would have chosen. Overall, it is generally preferred that you take care of appointing your caregiver yourself, and provide instructions of your philosophy and beliefs regarding heroic measures so that if you do become incapacitated at any time during your life, your wishes will be carried out without interference or objection.

We also do Probates (now called Application for Appointment of Estate Trustee With or Without a Will).

Probate is the procedure by which the trustee(s) or executor(s) that you have named in your will is given a certificate by the Estates Office that enables him or her to administer your will. The term “probate” is still used, but the official name is Certificate of Appointment of an Estate Trustee with a Will, or a Certificate of Appointment of an Estate Trustee Without a Will.

If you die without a will (intestate), probate procedures are more complicated, and the distribution of your assets according to legislation may not be what you want. The lack of a will may cause conflict between family members if they argue about your intentions. Often the greatest cause of concern is that there is no guardian named for the deceased’s children and/or no one chosen to manage finances for children who are minors. A court-appointed administrator will not have the broader trustee powers normally included in a will.