Wills & Estates

Wills and Powers of Attorney

Until a crisis arises, it is easy to ignore the need to plan for the unthinkable. The opportunity is gone and the solutions become even more stressful and costly for your estate and your family. The hardest part of obtaining Powers of Attorney and a Will is making some simple decisions.

If you know what documents you want to have prepared, call for a quote.

If you have existing documents, make an appointment to bring them in and we will see if they need to be updated or changed. A simple change to a Will is called a Codicil and is done when the updates are not extensive.

You need a Power of Attorney for Property as well as a Power of Attorney for Heath. Your Attorney does not need to be the same person for each role.

Estate Law

When someone passes away there are steps that need to be taken to ensure their affairs and assets are handled appropriately. Estate Law is a term broadly used for the role a lawyer plays in the process. When a loved one dies, it falls upon the Executor to meet with a lawyer to determine where to start. If there is a Will, the first step is to take the document to a lawyer (of the Executor’s choice) and work out a plan of what needs to be done and by whom.

If there is no Will, the first step is to determine who has the right to seek appointment as the Estate Trustee. The Law says that the closest relative has the first right to apply. With the complicated structure of todays families, there may be more than one person who feels entitled to apply. If you believe you have a right to apply to administer the estate of a loved one, you should immediately obtain legal advice. Additionally, if you believe you are entitled to inherit a portion of the estate, or want to seek support from the estate, you should seek legal advice as they are time limits for making claims against estates.

Legal fees are billed at an hourly rate for each member of our legal team. We do our best to provide guidance only when there are time consuming details which do not actually require legal management such as closing credit card accounts or paying utility bills. The first immediate action an Executor needs to take is to make funeral arrangements. There may be instructions in the Will to take into consideration.

It is important to locate documentation relating the assets and debts of the deceased. As an Executor it is your duty to fully account to the beneficiaries for all funds held by the deceased on the date of death, and thereafter until a final distribution is completed to the beneficiaries. Starting this accounting from day one is of vital importance and will save everyone involved both time and money.

When you, assuming you are a named Executor, meet with a lawyer for the first time following the death of a loved one the primary question the lawyer will attempt to determine is if probate is required. In Ontario it is actually called obtaining a Certificate of Appointment With, or Without, a Will and the Executor is the Estate Trustee, but for ease of reference we will use the old familiar terms.

Probate is required if there is property in the sole name of the deceased. It will also be required if there are investments of any size. Different banks and investment companies have different requirements but usually an account holding funds over $50,000.00 requires probate. This is so that Bank has a paper trail to confirm that they released funds to the appropriate party and not to make your life difficult. With smaller amounts there is often a procedure for the Executor to release the bank from liability so that probate is not required. This is entirely at the discretion of the institution.

Fees called the Estate Administration Tax are paid to the court on filing of the forms for probate. These fees are paid on the value of the estate which is why an early valuation of net estate value is necessary. If an application for probate is required it is a good idea to move quickly as it often takes time for the Court to issue the Certificate.

In the interim there are many duties for an Executor.

• Inform any income providers of the death. This could be private pension plans, CPP, WSIB, OAS and support payors. Check the bank account of the deceased for a year prior to the date of death for any periodic deposits that should cease on death;
• Apply for CPP death benefits and any private life insurance benefits;
• Locate and pay or arrange to pay any bills of the deceased. Cancel or transfer the accounts. This could be credit card, utility, insurance, and taxes. Arrange to have mail and e-mail forwarded and checked to locate any outstanding billing;
• If the deceased owned a home that is now vacant, inform the insurance company and comply with their requirements to continue to insure the vacant property. This may mean increased premiums and regular property checks which need to be documented;
• If there are personal items to be given to individuals, arrange for the transfer of the property. This could be as simple as taking the items mentioned to the person to the more complicated transfer of ownership for items such as a motor vehicle. In any event, it is a good idea to have the recipient sign a form confirming that they received the item. We can help with the drafting of this form;
• Disburse or dispose of the personal items of the deceased. This is usually an emotionally difficult task and you may want to ask other family members to help;
• If you need to sell a house or cottage the property will have to be readied for sale. If a beneficiary wants to retain a property by “buying out” the interests of other beneficiaries, ensure that your estate lawyer is involved in the negotiation. The majority of Estate Litigation arises from disputes over one or more beneficiary wanting to hold onto an asset such as a cottage.

Each estate is different. The death of someone close to you is a difficult adjustment. Let Brown Law help you with the role of Executor.