Please note that the information provided herein is not legal advice and is provided for educational purposes only.   If you need legal advice with respect to how to write a Will, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Wills and Estates lawyers registered who can assist you and provide you with free information and quotes on preparing your Will.

So why do you need a Will?
Well, if you have a Will, you can:

• decide who will be the beneficiaries of your estate (i.e. the pool of assets which will be distributed after certain expenditures are paid);
• give personal items to specific individuals;
• include persons who are not related to you by blood to inherit a part or all of your estate;
• allow you to divide the residue of your estate according to specifically identified trusts;
• select an Estate Trustee (i.e. a person who will administer your estate and pay out the specific trusts described in your Will);
• select a Guardian for your minor children (if you have any); 
• reduce the cost of administering your estate (e.g. by avoiding fighting and estate litigation); and
• reduce income taxes (especially if you die and leave a spouse behind).

written by admin \\ tags: benefits of having a will, do i need a will, how to write a will

Please note that the information provided herein is not legal advice and is provided for educational purposes only.   If you need legal advice with respect to durable power of attorneys, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).

In this blog, I’ll briefly review some of the key features of simple durable power of attorneys (also referred to as continuing power of attorneys).  Please note that I use the term “durable” and “continuing” throughout interchangeably.

Revoke Previous Continuing Power of Attorney
First, you’ll need to revoke any previous durable power of attorney.

Appoint an Attorney
Next, you’ll need to identify your attorney.  Use their full legal name and even adding an identifier (e.g. my son, my spouse, etc.) may help.  You can also consider appointing more than one person as your attorney.  This may be to share or divide responsibilities and to make sure there are sufficient checks and balances on decision-making; at the same time, it may overly complicate things and cause headache (diverging opinions coupled with joint decision-making authority may cause delays and turmoil!).

Appoint a Substitute Attorney
For whatever reason, in case the individual you appointed is incapable (e.g. vacation, sickness, death) or unwilling (e.g. through retirement) to act as your attorney at the time they need to, you should appoint a substitute attorney.

Authority of Attorney(s)
This part of your durable power of attorney should outline the powers and restrictions on powers which your attorney will have over your property.  Here, you can specify for example, that the attorney has the power, in his or her sole and absolute discretion, to make investments, to act as your litigation guardian to commence/defend/represent you in court, to take annual compensation in light of being your attorney, to deal with the Canada Revenue Agency on your behalf, etc.  Part of the terms and conditions of the durable power of attorney may also include things like the power to make loans or gifts on your behalf, the power to consult with specific people before decisions are made, and what happens if disputes arise (e.g. are they to be resolved through mediation or arbitration?).

Date of Effectiveness
The durable power of attorney is effective as soon as it is signed and witnesses unless specified otherwise in the actual durable power of attorney.  So you may state a specific date or event upon which the durable power of attorney becomes effective.

Signatures
Use blue ink (to show it’s original) instead of black.  Also, please refer to my previous blog entry on continuing powers of attorney which addressed some considerations which should be taken into account with respect to your witness’ signatures.

In case you were looking for a Continuing Power of Attorney legal form, look no further:

Continuing Power of Attorney for Property (Ontario)

This Legal Form can be used to appoint a person to make decisions on your behalf concerning your property and finances. It can impose limits on your attorney for property. Also, it is called “Continuing” or “Enduring” to signify that, even after you become incapable of making decisions concerning your own property, this Power of Attorney for Property will still be valid and applicable. We also have a Power of Attorney for Personal Care available on Dynamic Lawyers if you need one, as well as a Living Will (these things are typically done all at the same time with your Last Will and Testament). Here’s the sample Video Guide that comes with this Continuing Power of Attorney for Property:

Remember: if you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

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Please note that the information provided herein is not legal advice and is provided for educational purposes only.   If you need legal advice with respect to how to write a will, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).

In this blog, I’ll discuss whether a person needs a lawyer to prepare their will.  The simple answer is no.  The longer answer is: it’s probably in your best interests to have a wills and estates lawyer to draft and/or review your will.

There are only a few things that are needed in order for a will to be valid, binding, and of full legal force and effect.  But if you don’t do these basic things properly, the will can be contested through litigation, which will cost thousands of dollars (or more), destroy relationships, waste years, etc. (you get the point).

First, in Ontario, for a will to be valid, it must be in writing.  So says the Law Reform Succession Act.  The testator (i.e. the person making the will) must also sign the will before two witnesses, who must also acknowledge that this was done (in the presence of the testator).   The testator’s signature must be at the end of the document, but can follow a blank section on the page after the concluding words of the will.  Neither of the witnesses can be beneficiaries (and this has been used to challenge wills before).  I say again:beneficiaries under the will must never witness the testator’s signature. While there may be other requirements for a will to be valid, those requirements are often examined and dealt with by a lawyer who is trained and experienced in making the will as litigation-proof as possible.

First, a lawyer will deal with the issue of capacity – i.e. does the testator have sufficient mental capacity to enter into the will.  Does the testator understand the nature and consequences of the will or is their mentality affected by illness, age, etc.?

Next, a lawyer will try to make sure that the testator is not entering the will as a result of some duress or improper or undue influence from an external force.  The testator must enter the will voluntarily or else the will may be later contested.

Next, a lawyer will strive to ensure that all of the information-gathering is completed and due diligence has been conducted with respect to the testator’s income, assets, liabilities, and instructions.

Finally, a lawyer will use the appropriate language and precedents to give clear effect to the testator’s wishes and instructions.

For these reasons, it’s generally advisable to contact a lawyer (e.g. by making a post on Dynamic Lawyers) when you need to write or update your will.

written by admin \\ tags: beneficiaries, concluding words, consequences, do I need ato write a will, educational purposes, how to make a will, how to write a will, lawyer, lawyers, legal advice, litigation, mentality, professional assistance, proof, relationships, signature, simple answer, succession act, testator, thousands of dollars, two witnesses, will and testament, Wills and Estates, writing a will

Please note that the information provided herein is not legal advice and is provided for educational purposes only.   If you need legal advice with respect to how to make a will, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).

In the next few blog posts, I will provide some general observations about how to make a will.  In this part, I’ll discuss the initial checklist a person should make and follow in order to prepare themselves on how to make a will.  I am assuming that the reader will be trying to do this on their own without the assistance of a lawyer.  These days, lawyers typically charge between $300-$500 for a simple will, which may or may not include power of attorneys (i.e. continuing power of attorney over property and power of attorney over health care decisions).  Sometimes, lawyers will prepare your will for free, depending on whether it’s simple enough and whether they believe that they can get extra business out of you because of this free service.

Now onto the initial checklist…  The purpose of the initial checklist is to make sure that you gather all the relevant information necessary to create a comprehensive will.  This framework will help you understand how to make a will.  The following basic information should be included in the checklist:

• Personal Information
• Income Information
• Assets: Safety Deposit Boxes, Real Estate, Insurance, Annuities, RRSP’s, etc., Corporate Securities (i.e. shares and bonds, etc.), GICs, business interests, debts owing from third parties, royalties, machinery/tools/equipment, household goods and furniture, etc.
• Liabilities: Mortgages, Loans, etc.

Once details concerning yourself, your income, and your assets and liablities has been gathered, the next step is for you to outline the instructions for the will.

To start, the following questions will need to be answered with respect to disposing of personal effects and the residue of your estate (i.e. the pool of funds accumulated by the estate trustee after dealing with the deceased’s debts, taxes, and funeral-related expenses):

• How do you want your personal effects and estate residue to be disposed of with respect to your surviving spouse and children (if applicable)?
• How is the distribution to be effected (i.e. who does it and when can they do it; for example, the estate trustee can, in their sole and absolute discretion, effect the disposition of personal effects)?
• How is your real estate to be handled?
• How is your share of family business to be disposed of?
• Would you like to create a spousal trust, whereby your surviving spouse can live off of the income generated by the residue of your estate until he or she passes away, in which case, the residue is distributed among the beneficiaries (e.g. the children?)
• What kinds of powers do you want your estate trustee to have with respect to you personal effects (e.g. power to sell, power to invest, power to distribute proceeds, power to loan funds to beneficiaries or others, power to take reasonable compensation from the residue of the estate, etc.) and assets?
• Do you want to have special clauses dealing with minors (e.g. property relating to minors, a trust relating to minors, guardians of minor’s property, etc.)?
• What kind of funeral do you want to have?
• Do you wish to donate your organs?
• How are disputes to be handled (e.g. arbitration, mediation, court, etc.)?

These and other questions will need to be answered before the will can be properly drafted.

written by admin \\ tags: annuities, ate securities, beneficiaries, blog, business interests, continuings, corpor, court, general observations, health care decisions, household goods, how to make a will, how to write a will, information assets, initial checklist, lawyer, lawyers, legal advice, legal wills, machinery tools, make a will, mediator, personal effects, power of attorney, professional assistance, real estate insurance, royalties, safety deposit boxes, tools equipment, writing a will

Please note that the information provided herein is not legal advice and is provided for educational purposes only.   If you need legal advice with respect to how to write a will, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).

In the next few blog posts, I will provide some general observations about how to write a will.  In this part, I’ll discuss the initial checklist a person should make and follow in order to prepare themselves on how to write a will.  I am assuming that the reader will be trying to do this on their own without the assistance of a lawyer.  These days, lawyers typically charge between $300-$500 for a simple will, which may or may not include power of attorneys (i.e. continuing power of attorney over property and power of attorney over health care decisions).  Sometimes, lawyers will write your will for free, depending on whether it’s simple enough and whether they believe that they can get extra business out of you because of this free service.

Now onto the initial checklist…  The purpose of the initial checklist is to make sure that you gather all the relevant information necessary to create a comprehensive will.  This framework will help you understand how to write a will.  The following basic information should be included in the checklist:

• Personal Information
• Income Information
• Assets: Safety Deposit Boxes, Real Estate, Insurance, Annuities, RRSP’s, etc., Corporate Securities (i.e. shares and bonds, etc.), GICs, business interests, debts owing from third parties, royalties, machinery/tools/equipment, household goods and furniture, etc.
• Liabilities: Mortgages, Loans, etc.

Once details concerning yourself, your income, and your assets and liablities has been gathered, the next step is for you to outline the instructions for the will.

To start, the following questions will need to be answered with respect to disposing of personal effects and the residue of your estate (i.e. the pool of funds accumulated by the estate trustee after dealing with the deceased’s debts, taxes, and funeral-related expenses):

• How do you want your personal effects and estate residue to be disposed of with respect to your surviving spouse and children (if applicable)?
• How is the distribution to be effected (i.e. who does it and when can they do it; for example, the estate trustee can, in their sole and absolute discretion, effect the disposition of personal effects)?
• How is your real estate to be handled?
• How is your share of family business to be disposed of?
• Would you like to create a spousal trust, whereby your surviving spouse can live off of the income generated by the residue of your estate until he or she passes away, in which case, the residue is distributed among the beneficiaries (e.g. the children?)
• What kinds of powers do you want your estate trustee to have with respect to you personal effects (e.g. power to sell, power to invest, power to distribute proceeds, power to loan funds to beneficiaries or others, power to take reasonable compensation from the residue of the estate, etc.) and assets?
• Do you want to have special clauses dealing with minors (e.g. property relating to minors, a trust relating to minors, guardians of minor’s property, etc.)?
• What kind of funeral do you want to have?
• Do you wish to donate your organs?
• How are disputes to be handled (e.g. arbitration, mediation, court, etc.)?

These and other questions will need to be answered before the will can be properly drafted.

written by admin \\ tags: annuities, business interests, continuings, corporate securities, general observations, health care decisions, household goods, how to write a will, information assets, initial checklist, legal advice, machinery tools, making a will, personal effects, power of attorney, professional assistance, real estate insurance, royalties, safety deposit boxes, tools equipment, Wills and Estates, writing a will