Speech to the Indian Seniors of Richmond Hill given on April 29, 2016.
As seniors we need to think about what we do with our estates, which are all the assets we own. We need to decide who we give it to. The Ontario Law permits each one to make full disposition of one’s assets to the beneficiaries on wants to. The only exception is when you are looking after someone and they are your dependants we need to ensure that the dependants are in your will.
What happens if you do not prepare a will? The estate will go to your nearest relatives, based on the Succession Law Reform Act. First to your spouse or children, and if there are none then to your siblings. There is a structure in the law which sets out the beneficiaries and the amounts that these relatives will get. If there is no one else it goes to the government.
How do you go about preparing a will? You first decide what estate you have and that includes, the house, the shares and securities you own and then the other properties or business that you may own. Next you have to appoint an executor who will carry out the terms of the estate and will be responsible to to distribute the estate to the beneficiaries you designate. The next step is designating the beneficiaries who are the people you want to leave your estate to. Typically the most important person to give the estate is your spouse who has spent all the effort to help you bring up the children and worked towards building up the assets. The usual clause in the wills is giving everything to the wife or husband and then the last surviving spouse will give the estate to the children equally.
What happens when the children are grown up and they have children? In such case the children inherit equally but the grand children inherit the share of the parent if one of the children is predeceased. This arrangement is more typical, but you can give the estate to all grand children equally by number if you prefer, but it is not usual.
Who prepared the will? It is usually the lawyer. Can you prepare it yourself? Yes, but there are risks of missing out something or not expressing it correctly and then it can end up in wrong hands or end up in court which can cost a lot of money. For all the assets in your life this is probably the most important document you will prepare in your life.
How much does it cost to prepare a will? Depending on the lawyer and any additional clauses you might need. Basic cost is about $ 250 to $ 300 for a single will and for two persons it is $ 300 to $ 500.
What are the formalities of signing a will? You need two independent witnesses and if you prepare the will in the office of the lawyer there will be the lawyer and his staff. If you are doing it yourself you should not make the mistake of having a relative become witness. Such a witness can lose their share in the will.
Can a handwritten will prepared by a person valid? The Holograph will which is signed by the person in his own handwriting is valid, but it is not do not recommend that you do a holograph will on your own. If you are alone and there is no one to assist then you can do such a will as a last measure. It is risky to have such a will because you may miss out many details which the lawyer can think out for your and advise you on it.
How is a will probated? Probate of a will is when a person dies and you ask the court to allow the executor to gather the estate and make distribution of the funds to the beneficiaries. At the end you can take it to court to have the distribution approved and your role as an executor discharged or you can ask all the beneficiaries to give the executor released. This is normally done by a lawyer as the forms and the formalities can become complicated.
Who should be your executor? It should be one whom you trust and is a responsible person and preferably related to you he knows the family. It is possible to appoint a trust company but they will not be able to give personal attention to the distribution or make decisions which require special attention to special concerns in the family. A lawyer can be an executor but still a family member is the best.
Can a relative abroad be an executor? Yes, but they may need to post a bond equal to twice the amount of the estate and this can be provided by the bank. You can avoid the bond if you are resident as the court can supervise you and any beneficiary can bring an action to ask the court to ensure that the distribution is made correctly. The Ontario court cannot control the foreign executor and the bond is to ensure that if the funds were transfer out of the jurisdiction the bond will cover the amount misplaced.
Should one prepare a power of attorney? The general answer is yes. For older persons, preparing the power of attorney is very important. If you lose your ability to make decisions yourself, you have your so called attorney to do it for you. The power of attorney can be made to last beyond your mental disability but you have to write that in the power of attorney. It is called enduring power of attorney. A power of attorney is only valid when you are still alive.
Are there different types of powers of attorney? Yes, one that deals with your personal property and one that deals with personal health decisions. The Law Society recommends that you draft them separately if you are worried about the person who handles your finances handling your personal care decisions. If you are not worried of there being a conflict with the person, then it is easier to draft them as a single document.
How much does a power of attorney cost? Usually about $ 150 for each power of attorney and about 300 for two.
