Wills: Putting Your Legal Affairs in Order

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by Gordon Crann and Alan Redway

Travel may increase the risk of illness, injury or even death. In addition to purchasing travel insurance, you should consider putting your legal affairs in order by making a will and powers of attorney.

Do You Need A Will?

If you do not have a will when you die, the law will make one for you. In Ontario, the governing legislation is the Succession Law Reform Act. Here are a few examples of what happens under this law when people die without wills:

  • If you die with no surviving spouse, no heirs (children or grandchildren,) and no next of kin (parents, brothers, sisters, aunts, uncles, nephews, nieces or cousins), the provincial government will get everything.
  • If you are living in a common law relationship, your surviving common law spouse will not receive a property interest in your estate. If you had children, they would equally share your estate. If you had no children, your estate will go to your next of kin.
  • If you are married with children, your surviving spouse will get a preferential share of $200,000. If your estate is greater than $200,000, the balance of your estate over $200,000 will be divided equally between your spouse and the children.
  • If you die with children under 18 years of age, the Court will appoint an Administrator to administer your estate and determine the share of each child, sell sufficient assets to satisfy such share(s) and pay the share(s) into Court to the credit of the child. This could create financial difficulties for a surviving spouse, as well as administrative delays and added court expenses.

Making Your Will

Your will should include:

  • How your assets are to be divided among relatives, friends or charities.
  • Name the person(s) to manage your estate (called the Executor, if male, or Executrix, if female), who is someone you trust to act in your own best interests.
  • Name a guardian for any children under 18 years of age.
  • You can also identify sentimental property to be left to specific people.

You can make your own will without a lawyer by using one of the will kits found in office supply and book stores. However, even these will kits recommend you get professional advice to help you prepare your will.

Consulting a lawyer will help you to consider all likely possibilities when deciding how to divide your wealth after your death. Many lawyers charge a flat fee for preparing wills. Contact different lawyers to find out what their fee is before deciding on which lawyer you want to prepare your will.

Powers of Attorney

A will governs your estate after you die. A power of attorney provides for management of your property or your personal care during your lifetime if you are unable to do so yourself due to an injury, such as a coma, or a mental illness such as Alzheimer’s Disease.

In Ontario there are three kinds of power of attorney:

  • Continuing Power of Attorney for Property covers your financial affairs and allows the person you name to act for you even if you become mentally incapable.
  • Power of Attorney for Personal Care covers your personal decisions, such as housing and health care.
  • Non-Continuing Power of Attorney for Property covers your financial affairs, but cannot be used if you become mentally incapable. You might need this kind of power of attorney if you were travelling away from home for an extended period of time.

When naming your attorney(s), choose someone you trust to act in your own best interests.

It is possible to make your own power of attorney using forms sold in bookstores, on the internet or available from the Office of the Public Guardian and Trustee.

Especially if your affairs are complicated, you may wish to consider using a lawyer. As with wills, many lawyers have flat fees for preparing powers of attorney. Check with different lawyers about their fee before deciding on which lawyer to retain.

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