The Basics re: a final Will and Testament
Do you have a final Will and Testament? Are you considering getting one? Do you know why having a Will is important, or why not having one can result in serious legal consequences? These are all important questions and we will try to address each one of the below. But first, let us understand what a final Will and Testament is…
What is a Will?
A Will is a written document which specifies your wishes and your expectations with respect to your estate (or everything you leave behind) upon your passing.
Who should have a Will?
A Will is a legal document that every adult should have, no matter their age, stage of life, or future plans. It is crucial to be prepared in the event that something unfortunate happens. It is especially important to have a Will if you are married or cohabiting with your common law partner. If dealing with a separation, it is also important to revisit your previously drafted Will.
Why should you have a Will?
Having a Will is important because it allows you to make the ultimate decisions about what happens to your property, belongings, assets, liabilities, collectibles, etc. Your Will can ensure that your family and loved ones are properly taken care of upon your passing.
What happens if you die without a Will?
Without a valid and legally binding Will, decisions about what happens to your property or estate, upon death, become complicated. Under the Succession Law Reform Act, the governing legislation in Ontario, if you die without a Will only blood relatives (including your spouse and children, or legally adopted children) can inherit your assets. This may leave out other beneficiaries you intended to benefit from your estate.
In addition to limits on who is eligible to share in on your inheritance, the procedure when you die without a Will may result in additional costs and delays for the loved ones you leave behind. Without specific written instructions, your loved ones may become tangled in significant procedural, financial and legal webs.
By contrast, having a Will makes it easier on your loved ones to administer your estate upon your passing, without the additional burdens of having to sort out your property and finances.
Bottom line: there is no right or wrong time to think about preparing a Will.
What happens when you are still alive but incapable of making financial decisions in your best interests? The following section explores this issue in further detail.
Continuing Power of Attorney
A Power of Attorney (POA) is a legal document that gives someone of your choosing the right to make decisions on your behalf, either about your property or personal care.
A continuing (also known as an enduring or durable) Power of Attorney allows the person you have chosen to make decisions about your property or finances in the event that you become incapable of making those decisions yourself. The law that governs powers of attorney in Ontario is the Substitute Decisions Act.
A continuing Power of Attorney” gives you control over who will make these decisions for you, and similar to preparing a Will, it takes away the time and financial burden of having to turn to the law to seek authority to make those decisions.
Unfortunately, there are many uncertainties in our lives that we need to prepare for in advance. This is why it is important to prepare a Continuing Power of Attorney and Will in place sooner rather than later. That way, you can ensure that your loved ones are properly taken care of and do not have to shoulder any undue stress or financial burdens upon your incapacity and/or passing.