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.
What is a will, & why do i need one ?
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.
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.
How is the will set up?
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.
Continuing Power of Attorney for Asset Management
What is this and why do I need one?
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.
Power of Attorney for Personal Care – otherwise known as “Living Will”
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.
PROBATE
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.
What happens if I die and I didn’t make a will?
MEDIATION
What is Mediation?
Mediation is a form of out-of-Court resolution process. In the family law context, the purpose of Mediation is a neutral facilitator who is there to help couples resolve issues arising from their marriage and separation. Those issues include the division of assets and debts, parenting arrangements (custody and access), child support including Section 7 Special or Extraordinary Expenses, spousal support.
Mediation is a voluntary process. Before Mediation can begin, both spouses must agree to participate and both must sign a Mediation Agreement. No one can be forced to participate in Mediation.
When you choose Mediation to resolve family matters at our firm, you are choosing to:
Work with a neutral person to facilitate the difficult conversations about issues that really matter to you;
Work with an experienced Family Mediator who knows the issues you need to address on Separation, Cohabitation or Marriage;
Work together, with the help of our Mediator, to create a balanced global settlement that is tailored to you and your family.
Why Choose Mediation?
Divorcing couples often choose Mediation because:
Mediation is substantially less adversarial and less costly than Court litigation
Mediation provides for privacy and confidentiality.
You can choose the Mediator based on the Mediator’s background and experience in issues that are important to you (you can’t choose the Judges in Court that will impose decisions on you and your family).
All parties are participating in the final outcome, which is much more preferable to leaving important decisions to a Judge or Arbitrator. Mediation creates a “buy in” by the parties involved. Separation Agreements reached through Mediation are more sustainable and long-lasting than Court Orders, because people are more likely to follow Agreements they created themselves than Orders imposed upon them.
Mediation enables the spouses to control the outcome and final decisions. The terms of your settlement will be tailored and personalized to your family’s needs and priorities, rather than the typical one-size fits all (but doesn’t really fit anyone all that well) procedures and outcomes provided in Court Orders.
The law is always in the background of any settlement. In Mediation, you and your spouse are able to structure a global settlement in a way that satisfies your unique interests and concerns.
Mediated Separation Agreements include Dispute Resolution clauses that provide a clear process for addressing and resolving issues that might come up in the future.
How Does it Work?
Our firm’s Mediation process generally follows the following steps:
All parties who will be parties to the Mediation process will contact our office separately to set up individual appointments. We need to do this because Mediation is a voluntary process, so we need to hear from every person who will be involved in the Mediation before we schedule the Mediation Session.
Your Mediator will meet with each party separately first in order to learn about each person’s individual concerns and goals, and to screen them to make sure the Mediation is structured appropriately to meet the divorcing couple’s unique needs.
A Joint Mediation Session will be scheduled where the parties will talk about their individual concerns and goals, and with your Mediator’s help and guidance, an Agenda will be prepared that sets out the issues to be discussed and resolved in order of priority. You will each have the opportunity to identify pressing issues that need to be addressed immediately.
Your Mediator will send all parties to the Mediation Confirming Letters after each Joint Mediation Session, setting out what was discussed in the Joint Mediation Session and any agreements reached.
Once all issues have been addressed by agreement, your Mediator will prepare a Memorandum of Understanding (a summary of the settlement terms) and/or a draft Separation Agreement. You will take this to your respective lawyers for Independent Legal Advice and signing. Once you sign it, this document will become your Separation Agreement.
At any point during your Mediation, and certainly before a Separation Agreement is signed, each party must obtain Independent Legal Advice from their own respective lawyers.
Mediation for all Family Members
Many family matters can be resolved through Mediation. The resulting Agreements include:
Separation Agreements;
Cohabitation Agreements;
Marriage Contracts (aka Pre-Nuptual Agreements or Prenups);
Parenting Plans;
Plans for Elder Care;
Adoption Openness Agreements; and
Issues involving Wills and Estates.
If you have any questions about Family Mediation at our firm, please do not hesitate to contact us. We welcome your questions! Let’s Connect!