Estate Planning

2019 – Reminder to prepare your Wills and Power of Attorney documents

With 2019 just around the corner, a lot of us may be thinking about our new year’s resolutions.

Our reminder to you is to ensure that this year you check off a critical task on your to do list: Preparation of Wills and Power of Attorneys.

A Will allows you to take care of your family members first by ensuring that you select the correct person to manage your affairs after you have passed away. Among many other things, it also allows you to decide who will be the beneficiaries of your estate. While you may (incorrectly) assume that a certain person, perhaps your spouse, will automatically inherit your estate this is often not the case. Furthermore, those with minor children should particularly be concerned with appointing the best-suited party to serve as the Guardian for your children in the unfortunate event the parents pass away.

Do not let government legislation or courts dictate who is best suited to handle your affairs, look after your children and benefit from your estate.

Power of Attorney for property and personal care allow for the most trusted persons in your life to make decisions for you. In the absence of such documents, a lengthy and often expensive court process may have to be followed in order to allow another party to make such decisions for you in the event of incapacity.

It is very important to ensure that you have these documents completed in order to provide protection for your loved ones.

Wishing you a Merry Christmas and a Happy New Year !

Estate planning for Separated Couples – reasons to get your will done

In Ontario, simply being separated from your spouse and not obtaining legal divorce may put your estate plan in jeopardy. Section 17(2) of the Succession Law Reform Act (“SLRA”) provides that for parties that have obtained legal divorce, any reference to a former spouse in an individual’s will is revoked and the will is construed as if the former spouse had predeceased the testator (party preparing the will). This is helpful due to the simple fact that after divorce, there is clearly a shift in interests and priorities and the law protects you in this regard. However, unlike the provision protecting those who obtain a divorce, there is no similar provision in a situation where spouses are just separated. That being said, it is a common misconception to believe that if you are separated, your ex-spouse will not inherit anything.

In fact, where spouses are separated (assuming no update to the will) and one party passes away, the surviving spouse maintains his or her entitlement under the will. The result is not much different if there was no will to begin with – the separated spouse may still qualify under the definition of a “spouse” under the intestacy rules.

A simple example may serve to bring the point home: if you have separated from your spouse (and not obtained a divorce) and own property jointly, the property may pass to the former spouse automatically. A visit to the lawyer’s office can prevent this from happening so that your portion of the property passes on to whom you intend. This may be to provide for your children, your siblings or even your new common-law partner.

Along with preparing or revising an existing will, upon separation, one must ensure they update their insurance policies, registered plans, and any pensions. Further, unless you want your separated spouse to be able to make your property and personal care decisions, you must attend to preparation of your power of attorney documents as well.

Since separation can drag on for some time, individuals need to ensure they take a close look at their assets and related estate documents to avoid unintended consequences.

The above serves as general information only and is not to be relied on as legal advice. Please contact your lawyer for your specific circumstances.