A will and a power of attorney are both important legal documents, but they serve different purposes. A will is a legal document that outlines how a person’s assets should be distributed after they pass away. It also appoints an executor to manage the distribution of the assets.
On the other hand, a power of attorney is a legal document that grants someone else the authority to act on your behalf in certain situations while you are still alive. This can include managing your finances, making medical decisions, or handling legal matters. A will only takes effect after a person passes away, while a power of attorney is effective during a person’s lifetime.
Yes, it is possible to write your own will. You will need to include some essential details such as your full name, a statement indicating that the document is your last will and testament, the current date, the name of the person you appoint as the executor of your estate, your final wishes, and your signature. Additionally, you will need to obtain the signatures of two witnesses.
If you die without a will, it means you have died “intestate.” In this case, your property and assets will be distributed according to state intestacy laws, which may not align with your wishes. The distribution process will be determined by the laws of the state where you resided, and the court will appoint an administrator to manage the process.
When selecting a witness for your will, it is important to choose someone who is not an executor or +a beneficiary of the will to prevent any potential conflicts of interest.
The executor of a will is responsible for managing the distribution of the assets and carrying out the wishes outlined in the will after the person who created the will has passed away. This includes gathering and managing assets, paying debts and taxes owed by the estate, and distributing assets to beneficiaries as outlined in the will. The executor also has the responsibility to act in the best interest of the estate and its beneficiaries, which may involve making important financial and legal decisions. It is important to choose an executor who is trustworthy and capable of managing the responsibilities that come with the role.
Beneficiaries are individuals or organizations named in a will or trust who are designated to receive assets or property from the estate of the person who created the document. Beneficiaries can be family members, friends, charities, or other organizations. The specific assets or property that each beneficiary is entitled to receive will be outlined in the will or trust document. It is important to regularly review and update the list of beneficiaries to ensure that it accurately reflects your wishes and any changes in your circumstances or relationships.
It is important to keep your original will in a safe and secure location, where it can be easily found by your executor or loved ones after you pass away. Some common options for storing your will include:
- At home: You can keep your original will in a fireproof safe or filing cabinet at home. Make sure that the location of the safe or filing cabinet is known to your executor or a trusted family member.
- With an attorney: You can choose to have your attorney keep the original will in a safe and secure location, such as a fireproof safe in their office. This can also be a good option if you want to ensure that your will is properly executed and that any legal issues are addressed.
- In a bank safe deposit box: You can keep your original will in a safe deposit box at a bank. This can be a good option if you want to ensure that your will is kept in a secure location, but it is important to make sure that your executor or loved ones have access to the safe deposit box after you pass away.
Regardless of where you choose to keep your will, it is important to inform your executor or a trusted family member of its location, and to ensure that it can be easily accessed when needed.
While trusts can be used as part of estate planning in Canada, solely creating a trust to avoid tax payments by beneficiaries may not be considered legitimate tax planning and may have legal consequences. Tax implications associated with trusts can vary, and it’s crucial to seek professional legal and tax advice from a qualified expert who is familiar with the laws in your specific jurisdiction before making any decisions about creating a trust or engaging in estate planning or tax mitigation strategies. Tax evasion is illegal in Canada, and it’s important to comply with all applicable tax laws and regulations. It’s highly recommended that you seek professional legal and tax advice from a qualified expert.
- If you need to make small changes to your will in the future, you generally have two options:
1. Create a Codicil: A codicil is a legal document that amends or supplements an existing will. It allows you to make specific changes to your will without revoking the entire will. A codicil must meet the same legal requirements as a will, including being in writing, signed by you (the testator), and witnessed by two or more witnesses who are not beneficiaries or spouses of beneficiaries.
- Create a New Will: Alternatively, you can create a new will that revokes your old will and includes the desired changes. Creating a new will is often recommended when making more substantial changes to your estate plan or if you have multiple changes to make.
- When making changes to your will, it’s important to carefully consider the implications and seek professional legal advice to ensure that the changes are legally valid and reflect your intentions.
No, trustees or executors are not required to approach a specific firm or entity to obtain probate when the testator (the person who made the will) passes away. Probate is the legal process of validating a will through the court and obtaining authority for the executor or administrator to administer the estate. The probate process can be complex and involve legal requirements, deadlines, and potential liabilities, and it’s highly recommended to seek professional legal advice from a qualified lawyer.
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Wills & Estate Lawyers
While you may find it challenging to decide what you should leave behind and who should be entitled to your possessions after your passing, it’s always better to work with a will lawyer in Mississauga or Brampton and make such preparations beforehand for inevitable circumstances. It’s no surprise that an individual’s death can result in emotional and financial burdens among their family members and loved ones. Furthermore, it can even increase their legal obligations, especially when there’s no will lawyer to walk them through the process. However, written instructions in the form of wills can greatly help. Your will and estate distribution will be just as thorough and streamlined as detailed and specific your plan is. Our Wills & Estate Lawyers in Mississauga and Brampton can assist you in such matters.
Mississauga Wills & Estate Lawyers
- Should you pass without a valid Will (i.e. intestate), your estate will be distributed in accordance with provincial laws, which may or may not represent the best possible outcome for your family and loved ones. The Office of the Public Guardian and Trustee (OPGT) may also get involved when an Ontario resident dies leaving an estate behind with no one available to administer it.
- Maintaining a current or up-to-date Will ensures that the distribution of your estate is in accordance with your intentions, your preferences, and your specifications.
- A current, detailed, and valid Will provides you with peace of mind and it prevents your passing from becoming a source of tension, stress, or a legally administrative burden upon your family and loved ones.
Family Law Implications
1- When you marry, any valid Will made prior to your date of marriage is invalidated, unless it was made in contemplation of your upcoming marriage. Here are a few of the disadvantages:
2- Divorce, on the other hand, does not invalidate a pre-existing valid Will. Your former spouse may nevertheless be able to claim a share of your estate, unless your previous Will is updated to reflect your change in marital status.
3- If you have minor children, you can specify in your Will how they can be cared for and provided for by your estate, upon your passing, as well as who is to be appointed as their guardian until the children have reached adulthood or become independent.If both you and your spouse die at the same time, your guardian of choice can look after your children, so long as they are dependents. This choice, as specified in a valid Will, is also taken into consideration in a court’s final decision with respect to guardianship. You can also designate a property guardian or trustee to manage the wealth you leave behind for the benefit of your children until they reach adulthood or become independent. If only one of the spouses passes away and there are minor children left behind, the surviving spouse will need to apply to the court to be an Estate Trustee without a Will.
4- You must also keep in mind the differences that exist between the treatment of common law spouses and married spouses when one of the parties dies without a Will.
5- A common law spouse does not have the same rights to share in the assets of the deceased spouse, as a married spouse would. Unless there is a valid Will in place specifying otherwise, a common law spouse may end up with no property after the passing of his or her partner.
6- When there is no valid Will in place, a surviving married spouse in the Province of Ontario is entitled to the first $200,000.00 of the deceased spouse’s estate assets, with the remainder of the estate being split in equal shares between the child(ren) and the surviving spouse.
7- Pursuant to section 4(2) of the Family Law Act, property, other than a matrimonial home, which was acquired by gift or inheritance from a third person after the date of the marriage, is excluded from the spouse’s net family property at separation.
- However, income from such property may be included in the spouse’s net family property, unless the donor or testator expressly states in his or her Will that such income is to be excluded from the spouse’s net family property.
- Practically, this means that property gifted to or inherited by your child upon your passing, through a valid Will, may be protected by being specifically excluded from your child’s net family property, thus preventing your child’s former spouse from sharing in on the value of this gifted or inherited property post-separation.
Hire our Wills & Estate Lawyers for Family law or wills.
When does the Office of the Public Guardian and Trustee become involved?
The OPGT will apply to be appointed estate trustee if:
- The deceased was an Ontario resident or owned real estate in the Province of Ontario; and
- The deceased did not make a Will or the deceased made a Will, but the executor elected to administer the estate has since died, become incapable or is unwilling to be an executor; and
- There are no known next-of-kin to the deceased living in the Province of Ontario or the next-of-kin are minors or mentally incapable adults; and
- The estate is valued at a minimum of $10,000.00 after payment of funeral expenses and all debts owing by the estate of the deceased.
Dying without a Will
Here are some obvious disadvantages of dying without a Will:
- Estate division and/or distribution is done in accordance with a provincial distribution formula, as opposed to in accordance with your wishes and preferences as a donor or testator.
- The individual looking after your estate may not be the person you would have chosen to handle your affairs upon your passing.
- The process of settling estate affairs of the deceased is more costly and time-consuming when there is no valid Will in place.
- Until a Certificate of Appointment is issued, there is no person with the requisite authority to deal with your estate.
- A power of attorney previously granted by your to someone else automatically terminates upon your passing. Therefore, if there is no valid Will in place, your previous power of attorney will not be able to deal with your estate affairs.
- In cases where you own property with another individual (other than spouse) as joint tenants, if you die without a will, the joint tenancy will be severed and ownership reverts fully to the other individual. This means that upon your passing without a valid Will, your surviving spouse and child(ren) will not inherit your half share in that property.
- Specific instructions in your Will severing the joint tenancy upon your passing and having it convert to tenancy in common ensures that your surviving spouse and child(ren) share in on the asset.
Leaving things to chance does not work in life; why would it be any different upon death? At Nanda and Associate Lawyers, Wills & Estate Lawyers can assist you with all of your estate planning needs, so you do not have to rely on chance.