Estate Planning FAQs

If I don’t have any assets why do I need a will?

Even in the event that you die with minimal assets, a will is necessary to legally identify a guardian for your minor children, or your beloved pets, and someone who will be authorized to distribute your personal mementos. A will also ensures that assets you do not currently own, or even anticipate owning, will be transmitted appropriately following your untimely death. Such assets can include inheritances or other windfalls, but often are the result of accident insurance claims. If you are involved in an accident that causes either a personal mental infirmity or your death, a will ensures that proceeds of litigation will be distributed in accordance with your wishes following your death.

Do I still need a will if I put one of my children’s names on all of my accounts and on title to my real estate?

This type of ‘self-help’ approach is very common. Unfortunately, there are significant legal pitfalls associated with this type of estate planning.

When a child jointly owns a residential property with a parent but does not live in the property, the tax consequences can be MUCH more onerous than the costs of probating the asset under a will. Further, if it is your intent to gift a property to only one child in this manner, you should be aware of several court decisions overturning this type of gifting in favour of a more equal distribution with your other children. A properly crafted will can overcome these and other estate planning pitfalls.

Why use a lawyer to draft my will?

There are many reasons to rely only upon a qualified wills and estates lawyer – the four most significant are listed here:

  • Execution and handling requirements for wills are very specific. Failure to adhere to these specific requirements can occasionally result in your will being deemed null, or more commonly in additional work being required during the probate process.
  • Kits that can be purchased at drugstores or online make estate planning seem so simple. Too simple! Clauses that are wonderful for one person can be tragically ineffective for others – what you don’t know about estate planning often results in a lawyer being retained to handle a complicated probate or estate litigation process. For a more detailed discussion of online and kit products see DIY Risks.
  • Not all assets you own or have entitlement to during your lifetime can be conveyed through a will. Lawyers are often retained to interpret or litigate imprecise attempts at conveying such assets.
  • No other professionals or para-professionals are trained in drafting complete trusts (for minors, disabled beneficiaries or children with rocky marriages) to protect your assets from misuse or waste.

What is the difference between a Power of Attorney (POA) and a Representation Agreement?

A POA is a document effective during your lifetime, allowing another person to deal with your assets in the event you are unavailable to do so. Powers of Attorney may be crafted to limit the type of assets a person may deal with, or the timeframe they are authorized to act, among other restrictions. A Representation Agreement is a document effective during your lifetime, allowing another person to make medical decisions on your behalf in the event you are incapable of doing so.

Why does a thorough estate plan include more than just a will?

A will only takes effect at the time of your death, not before, and then must be probated before assets can be transmitted into the hands of your Executor for management and distribution. A will cannot ensure that your business interests or personal holdings are managed effectively during mental or physical infirmity prior to your death. As well, a will cannot ensure that you are taken care of in accordance with your wishes during a period of mental infirmity prior to your death.