WHAT IS A WILL?
A Will is a document that specifies “who will get what when you die”. It is important to have a Will for this reason only. If you do not have a Will, someone else will make that decision for you.
There are three types of Wills, and they are all legal.
Most “do-it-yourself” kits are very general and may lead to estate problems. They do not provide for all contingencies and you do not benefit from receiving legal advice from a lawyer when completing it. You may therefore omit certain aspects that are very important or you may include something that may be ambiguous or contradictory.
This type of Will has to be written by hand by you only. It must be dated and signed by you. There is no need for witnesses for this type of Will. It must nevertheless contain all the general terms that are usually found in a Will, such as the name of your estate trustee* and the person who will be your successor. As with the previous type of Will, there are dangers to drafting your own Will such as omissions, inaccuracies, contradictions or ambiguities, which may lead to estate problems.
*formerly called “executor”
Ultimately, if any problem arises as a result of you drafting your own Will or drafting it with a kit, you may be giving the person you have appointed as your estate trustee more trouble than anticipated.
Prepared by a lawyer
In most cases, a Will prepared by your lawyer will ensure that no such problems arise. It will provide for contingencies and you will be assured that once you have passed on, barring exceptional circumstances, your wishes will be honoured.
WHY DO I NEED A WILL?
If you have specific wishes related to how your assets will be distributed and who will do that for you after you die, you need to prepare a Will that will include all your wishes. The best option is a Will prepared by your lawyer.
Your lawyer will make sure that the person you appoint as your estate trustee fulfills his or her responsibilities, and if that person is unable or incapable of doing so, that a substitute Will be named. Also, your lawyer will guide you if you wish to leave a specific item to a specific person (beneficiary). You must also name a secondary beneficiary in the event that the person you named dies before you or is unable to receive the item.
A Will is probably most necessary when you have young children. With the help of your lawyer, you will appoint legal guardians, name a trustee who will look after the children’s money and assets until they are old enough to receive them and decide when the children will receive such money and assets.
You may choose to leave all of your property to one person or to several different persons. However, if you own any property jointly with another person, there is no need to name anyone as the beneficiary of such assets. Joint property may include a house or a bank account. When property is owned jointly, and one of the “owners’’ dies, the property automatically goes (reverts) to the survivor.
As well, if you have assets that provide for the naming of a specific beneficiary, such as a life insurance policy and RRSPs, there is no need to include this particular asset in your Will. When a different beneficiary is designated in a Will for an asset that already has a named beneficiary, the proceeds will become void (they will “fail”) for the beneficiary named in the Will as there is already a beneficiary designated to receive the asset. For example, you own a life insurance policy. You designated your spouse as beneficiary. However, some time after, you included this life insurance in your Will, and you designated your sister as beneficiary. Upon your death and execution of the Will, your sister will not receive the life insurance proceeds, because you had already named your spouse as beneficiary on the actual life insurance policy.
There are great benefits to naming a specific beneficiary on assets that allow you to do so and for having joint property. These all have to do with whether your estate will need to be probated.
WHAT IS A “CERTIFICATE OF APPOINTMENT OF ESTATE TRUSTEE WITH A WILL” (formerly called “probate”)?
A certificate of appointment of estate trustee with a will means that your estate trustee needs to obtain “official authorization” from the court in order to carry out your instructions in your Will. It allows your estate trustee to sell your home if you are the sole owner upon your death and your property is worth more than $50,000 and to distribute funds from your bank accounts if no one else is joint owner. If you have sole bank accounts with a significant amount of money, most banks will not allow your estate trustee to retrieve those funds without proper proof of certificate of appointment of estate trustee with a will, as they could be liable to the Canada Revenue Agency if the money is withdrawn without such proof.
WHAT IS A “CODICIL”?
A “codicil” is a supplementary document to a Will that supplements, explains, modifies or subtracts information from that Will. For example, you may wish to change the person you appointed as estate trustee. A codicil is not as common today because of computers. We are now able to quickly redraft a Will or make changes to an existing Will.
WHAT IS A “POWER OF ATTORNEY”?
A Power of Attorney is a document that is prepared in case you (the “Grantor”) become incapacitated or will be absent. It gives another person (the “Attorney”) the power to take care of your financial matters and make decisions on your behalf should you be unable to do so, whether due to illness or if you plan to be away for a long time, for example, on a trip. The Attorney, however, is unable to make a new Will.
As with a Will, it is very important to consider who you wish to designate as your Attorney. This person will have every right as you do in dealing with your property or with your health.
There are two different types of Powers of Attorney.
Power of Attorney for Property
A Power of Attorney for Property allows the Attorney to deal with all aspects related to your property, whether a house, a bank account or any other type of asset. Your Attorney will be able to make any decision on your behalf that relates to your property issues, pay your bills and spend your money.
You may include certain restrictions or conditions in your Power of Attorney for Property. For example, your Attorney will only be acting on your behalf for a real estate transaction while you are away on a trip.
Power of Attorney for Care
A Power of Attorney for Care allows the Attorney to deal with all aspects of your health, including who will take care of you should you become incapacitated, the type of medical treatment you receive in specific circumstances and whether you are to remain on life support, should such a situation arise, and under what conditions.
WHAT IS A “LIVING WILL”?
A Living Will is a document that only includes your wishes in respect to withholding medical treatment should you become incapacitated and terminally ill.