Estate Planning

Simply put, a Will expresses your desires when it comes to how your affairs and your things are dealt with after you’re gone. Most people usually think a Will is only for identifying who gets what, but the reality is that it’s so much more than that.

Writing your Will means you choose who is legally appointed to carry out its terms. This person, people, or party is responsible to everyone (including the government) that your wishes are carried out correctly. When you don’t have a Will, having one appointed can often be time consuming, costly and can create conflicts.

Wills do other things as well. They create tax planning strategies, provide guardianship provisions for minors, and have an undeniable emotional value to the people we care about. If you pass away without one, the law will dictate who will inherit your assets. These laws often exclude a variety of different types of relationships, making writing one especially important to care for those who are not blood or legally related.

The benefits are numerous and vary for each person. That’s why it’s very important to consult a lawyer to help walk through your circumstance.

Estate planning is a process that involves planning for after death affairs. Its focus is to manage and arrange your assets and affairs while you’re living, so that you leave the most behind to those you care about, while dictating exactly who and how they will be managed.

While there is often a big emphasis on tax planning, estate planning also involves managing relationships among, and between, the people closest to us at the time of passing.

Common law spouses do not share automatic protection in the case of death without a Will. This can often be disastrous and challenging for a common-law partner who has shared most aspects of life with you, and the importance of a Will cannot be overstated.

If a common-law partner is not related to someone who has passed away without a Will, they will be left to commence a claim for what they may be entitled to. That’s usually a long and costly battle that most people don’t want to take, especially in the context of grieving.

If you’re in a common-law relationship, a Will is critical to protecting your partner and planning should take priority.

If you have assets located out of the country, it’s prudent to talk about future planning with your lawyer. While you can have a Will that works internationally, we have found that this can often create delays and complications in finalizing your affairs after death. Each country has its own set of succession laws and having a plan that works seamlessly with all jurisdictions is not always easy. Not to mention language differences that can create additional hurdles.

We often recommend that in such cases a Will be made for each jurisdiction, therefore separating the administration process down the line. This strategy often saves your estate costs and headaches, which can be worth the time it took to plan it.

When you have children or dependents, you are legally obligated to care for them. This means that your Will should anticipate their needs and provide terms to ensure your children or dependents are taken care of.

Most notably is the care for such minor(s) or dependent(s). Who will take carriage, if needed, is an important topic that should be addressed. This includes both physical carriage as well as financial carriage.

If someone passes without a Will and has children or dependents, a government body will typically step in to ensure that the minors or dependents are taken care of. Ultimately a plan will be created to make up for the lack of planning, but this may not reflect your wishes. It also might lead to disagreements and court battles.

Writing your Will ahead of time ensures that you create measures to appoint guardians for your minor children or dependents, so that they are well cared for in the case of urgency.

If you lose the capacity to deal with your own affairs, your Power of Attorney document will appoint someone to make those decisions for you. If you don’t have a Power of Attorney document, it will depend on whether the decision to be made on your behalf is financial or health-related.

In the case of health-related decisions, your family is entitled to make decisions for you. In Ontario, the Health Care Consent Act provides for that, although any specific decisions you may have wanted will not be addressed.

In the case of property or financial affairs, there is no law that grants someone the automatic right to deal with your finances and a guardian must be appointed. This appointment is usually handled by either a government body, the Public Guardian and Trustee, or appointed by the Court.