Wills & Estates FAQ

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1What is a will?
A will is a legal document that describes your wishes regarding the distribution of your assets and property, and the care of any minor children upon your death.
2Who is an Executor?
An executor is the person named in a will or appointed by the court to carry out a person's financial affairs after his or her death.
3What is the difference between a Will and a Power of Attorney?
A Will deals with your affairs after your death and gives an executor the authority to manage your affairs after death, whereas a Power of Attorney gives your attorney the power to make financial or medical decisions on your behalf while you are alive.
4Why do I need a Will?

Making a Will is the most important step that you can take for yourself and your family. A Will cannot only legally protect your spouse, children and assets but it can also spell out how you would like your assets to be passed on after your death.

In other words, there could be many reasons for having a Will, as each person’s circumstances vary, such as: you as the testator decide how your estate will be distributed; you decide who will be the custodian//guardian of your minor children; minimize estate taxes; you decide who will wind up the affairs of your estate; avoid legal challenges etc.

5What happens if I die without a Will?

If you die without a Will, the law says that you have died "intestate," which means that you left no instructions as to how your property is to be divided and distributed. Without a Will, your property will be divided according to the Ontario Succession Law Reform Act.

If you do not have a Will, you will have no control over who will look after your property and your minor children after you die. The Court will appoint someone as an administrator to look after your estate, and to be the guardian of your minor children, if any. The people that the Court chooses to appoint for these roles may not be the ones that you would have otherwise chosen. In addition, there could be unnecessary delays and costs in administering your estate. There could be delay in distribution of the estate, chances of minimizing probate taxes are lost.

6Is my will invalidated/ revoked if I am separated from my spouse or get a divorce?
A breakdown of a marriage does not automatically invalidate/revoke a will, but in the case of a divorce, may cause certain gifts and appointments to be revoked. This means that your ex-spouse is not automatically cut-out.
7Should I change my Will, if I am separated from my spouse?
Yes. If you are separated from your spouse, it is very important that you make a new Will as soon as possible. If you do not have a Will, your spouse will be entitled to inherit your estate. If you have a Will, your existing Will remains in effect while you are separated unless you revoke it. If you die before your divorce is finalized, and you have not made a new Will since separating, your former spouse will likely get everything.
8What happens to my Will in the event of a divorce?

In Ontario, as per the Succession Law Reform Act (SLRA), your Will is not automatically revoked but any gifts to former spouses by Will are automatically revoked and the surviving former spouse is treated as though the surviving ex-spouse had predeceased. These rules apply to married spouses only.

In other words, if you get a divorce, your Will is not cancelled. Instead, only the provisions in your Will that refer to your spouse are revoked and any gifts you left to your former spouse will go to someone else because a divorce invalidates any gifts to former spouse.

9Will my former spouse still remain the executor or trustee of my Will in the event of a divorce?
Upon divorce, your former spouse will no longer be your executor or trustee of your Will.
10What happens to my will if I get married?
In Ontario, your Will is automatically revoked once you get married subsequent to signing a Will. There is an exception to the rule, such as when the Will specifies that it is being prepared in contemplation of your marriage. To show that the Will was made with the marriage in mind, it must contain a statement which makes reference to your upcoming marriage and the name of your spouse. If your Will did not contain this statement, it is no longer valid after you are married, and you should therefore make a new one. If you do not make a new Will, upon your death, you will be considered to have died intestate and the rules under Ontario's Succession Law Reform Act will apply.
11Do common law partners have the same legal rights and responsibilities as persons legally married?
No. In particular, common law partners do not have the same property rights upon relationship breakdown as married spouses do upon marriage breakdown. Generally speaking, common law partners do not have an automatic right to share in any of the property of the other and there is no "matrimonial home”. Therefore it is often advisable for common law spouses to enter into a cohabitation agreement in order to define their rights and responsibilities upon relationship breakdown.
12What are Multiple Wills?

Multiple Wills are recommended where the estate will include business assets or property located in another country. It is important to ensure that one Will does not revoke or override the other Will.

In Ontario, it is becoming increasingly common for people to make Multiple Wills in order to have one Will deal with assets that will not require probate and another Will to deal with all other assets. Multiple Wills are often used for people who own shares in private companies or are partners in a business. In this situation one Will deals primarily with the business assets, which do not need to be probated and the other Will deals with almost everything else. The executor will normally only need to probate the Will which deals with the non-business assets, thus making it is possible to avoid paying probate taxes on the private corporation shares.

13What is a Power of Attorney?
A Power of Attorney is a document which gives someone else the legal authority to act on your behalf in order to manage your legal and financial affairs. The power given can be very broad to allow complete control over all your finances and property, or it can be limited to a specific task.
14Why do I need a Power of Attorney?
A Power of Attorney authorizes your attorney to make financial or medical decisions on your behalf while you are alive. This is important when it comes to handling joint assets, like a house, bank accounts, that can't be sold without the consent of both parties. Imagine a scenario where you are in an accident and are unable to respond due to your injuries. Your spouse needs to sell the house in order to make ends meet, but since your name is on the title, he or she is unable to sell the house without your consent. Therefore by having a power of attorney in place will ensure that your family never experiences this situation.
15Who is the donor?
Donor is the person who authorizes someone else to act for him or her. Donor is also referred to as the principal or grantor of the power of attorney.
16What does the term “attorney” mean?
“Attorney” refers to the person or persons you have chosen to act on your behalf.
17What are "joint" or "joint & several" attorneys?

Sometimes a donor will want to appoint two attorneys. In that case the donor must decide whether the attorneys will be "joint" attorneys or "joint and several" attorneys.

Joint attorneys must act together. They must both agree before any step can be taken, and they must both take the same step at the same time. If one is absent, no step can be taken.

Joint and several attorneys can act together or individually. Either one can take an action without consulting the other. If one is absent, the other can still act.

18What do you mean by an alternate/substitute attorney?
An alternate/substitute attorney can only act when the attorney is unable or unwilling to continue acting for the donor. Sometimes a third party such as the donor’s bank may require proof that the original attorney is unable to continue as attorney before accepting instructions from the alternate attorney. Where two attorneys have been appointed, the document may state that if one dies or is otherwise incapable of acting, the other will continue as sole.
19What is the effective date of a power of attorney?
A power of attorney can become effective on a date specified in the document, or upon the occurrence of an event (such as disability or incompetence). If there is no specified date or event, a power of attorney starts immediately upon execution.
20How and when does a power of attorney end?
An ordinary power of attorney ends automatically when the donor becomes mentally incapacitated or dies. An enduring power of attorney ends automatically when the donor dies. As long as you are mentally competent, you may revoke your power of attorney at any time by notifying your attorney (in writing) that the power is revoked and destroying the original power of attorney. Otherwise, a power of attorney continues in effect indefinitely, unless the document specifies an end date.
21Can I revoke my power of attorney after I have become incompetent?
A person who is incompetent cannot revoke an enduring power of attorney. However, an ordinary power of attorney is automatically revoked when the donor is found to be incompetent.
22How do I revoke my power of attorney?
You can revoke, or cancel, a power of attorney by giving your attorney a written notice saying that his or her power has ended. Also, you may make a new power of attorney that states your previous power of attorney is now revoked (but you must still notify the previous attorney of the revocation). Third parties such as people or organizations that have been dealing with you attorney must also be notified. If you fail to inform your attorney of the revocation, your attorney can legally continue to make decisions on your behalf.
23What happens to a power of attorney when the person giving it dies?

If the donor dies, the power of attorney is revoked and does not survive death.

After death, the person named as executor of the estate under the donor's Will takes over as being the person in charge. The executor handles all financial and legal matters. If there is no Will, the power of attorney still comes to a stop, even if it means that there isn't anyone in charge until the court appoints an administrator.

24Can I appoint the same person as the executor of my estate and the attorney under my power of attorney?
Yes, the same person can be appointed as the executor of the estate and attorney under the power of attorney.

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