Toronto Estate Lawyers for Wills, Estates and Powers of Attorney
At Devry Smith Frank LLP our Toronto Estate Lawyers can assist you with legal matters regarding wills, living wills, estates and power of attorney documents and advice. Wills and Powers of Attorney play a significant role in your estate planning. They permit you to structure your affairs both during your lifetime and after your death in accordance with your wishes. If you don’t have a will or appropriate powers of attorney, your estate will be dealt with in accordance with the statutory scheme for intestate succession or the law governing guardianship of people unable to manage their own affairs.
Intestate Succession (without a will)
If you have no will, your estate will be distributed on your death in accordance with the scheme set out in the Ontario Succession Law Reform Act. If you have a surviving spouse and children, your spouse will receive the first $200,000.00, and the spouse and children will divide the rest of your estate, with the percentage depending upon the number of children. Where there are no children, your spouse will be entitled to your entire estate.
If you leave no spouse or children, then your estate goes to your next of kin, determined by “degrees of consanguinity” (relationship) under the Succession Law Reform Act.
If you die without a will and any part of your estate passes to a child under the age of 18, that child’s share will be administered on the child’s behalf by the Ontario Office of the Public Guardian and Trustee, and the child will be given his or her share at age 18.
Testate Succession (with a will)
Subject to your spouse’s right to an “equalization payment” under the Ontario Family Law Act, you may deal with your affairs on your death in whatever manner you consider best. This will enable you to:
- Implement a tax structured estate plan
- Designate the person or persons who will administer your estate as Estate Trustee (Executor)
- Grant to your Estate Trustee a wide variety of powers in dealing with your estate. These might include the power to defer distribution of your estate, to invest assets of your estate, to sell assets of your estate and reinvest the proceeds, to distribute assets to beneficiaries in the form in which they were on your death, to borrow money on behalf of the estate and to make elections under the Income Tax Act (Canada)
Specify how your estate will be administered for the benefit of minor beneficiaries (children), including:
- who will act as trustee for minor beneficiaries
- whether monies can be paid either on account of income, principal or both, to minor beneficiaries prior to their age of majority
- whether monies can be paid to the parent or guardian of a minor beneficiary for the benefit of the minor beneficiary
- at what age a minor beneficiary will be entitled to his or her share of your estate, either in installments or at one time
- Specify who will receive your personal and household effects.
Updating Your Will
There are a number of circumstances which might warrant a review and possible revision of your will and estate plan. Although a carefully drafted will should contemplate the possible death of a beneficiary or estate trustee, the death of an estate trustee or of a principal beneficiary might justify redrafting the will. Furthermore, although the choice of estate trustee may have seemed advisable when the will was drafted, if circumstances change, either because of the relocation of the proposed estate trustee or the declining health of the proposed estate trustee, it might be advisable to draft a new will with a new estate trustee.
In Ontario, marriage revokes a Will unless certain preconditions are met. On the other hand, a divorce does not have the same effect. Similarly, a separation warrants a review of your will and estate plan. Also, where tax planning has formed a significant factor in the structure of your estate plan, a periodic review of the estate plan in light of changing tax rules is advisable, as the rules with respect to capital gains, tax free transfers, exemptions, preferred beneficiaries, etc. change frequently.
Powers of Attorney
The Ontario Substitute Decisions Act (1994) created two types of powers of attorney. A Power of Attorney for Property (also known as a General Power of Attorney) will enable the person designated in the power of attorney to look after your financial affairs including bank accounts, investments, real estate, other property, etc., subject to any restrictions that you elect to include in the power of attorney. The powers conferred by the power of attorney may be exercised at any time, but are generally intended to enable the designated person to administer your affairs during any subsequent incapacity, although a power of attorney is frequently used to enable someone to deal with your affairs while you are travelling or otherwise unavailable.
The second type of power of attorney is a Power of Attorney for Personal Care. This enables the designated person to make decisions regarding care and medical treatment when you are unable to do so due to incapacity.
Although the Substitute Decisions Act enables a court to appoint a guardian for property or for personal care, it is not necessary to apply to the court for such purpose if an attorney has been designated under a power of attorney. If there is a dispute, your power of attorney is clear guidance to the court of your preferences regarding the choice of guardian of your care and property.
The Substitute Decisions Act also provides for the appointment of the Ontario Public Guardian and Trustee as guardian for property or for personal care if there is no other suitable candidate. This can generally be avoided by executing powers of attorney.
Our law offices are conveniently located in the Lawrence and Don Mills area of Toronto and we have plenty of free parking.
For further information or assistance with legal matter regarding wills, estates or power of attorney, contact one of our Toronto estate lawyers listed on the left by clicking on their name.