What is the difference between a will and a power of attorney?

A will is a written direction regarding the disposition of your assets upon your death. It is only effective on your death (the theory being that until you are dead you could always do a new will). This means for example that the appointment of an executor (now called “estate trustee”) is only effective after your death, so before your death your executor would not be capable of looking after your affairs. A will gives your assets to named beneficiaries, sometimes outright, sometimes gradually subject to certain trusts.

A power of attorney is a written appointment of someone to manage your affairs for your benefit while you are alive. The power of attorney expires on your death. Unlike a will, the power of attorney does not give anything to anyone (that is, there are no beneficiaries).

WILLS:

If I am young and single and do not have much money, do I really need a will?

Yes. Most young people have employment. This means you likely qualify for a Canada Pension Death Benefit. Furthermore, even if your worldly possessions are few and of relatively little value, the question will still arise, “Who gets it?”, and this is more complicated when you are not married because of the multiplicity of possible beneficiaries. Finally, someone will in any event have to make arrangements for your burial and the settlement of your Estate, so you might as well decide who is to do that to avoid having to pay a lawyer to get someone appointed by a Court of Law.

If I am married with two small children, doesn’t everything just go to my spouse anyway, even without a will?

No. Your spouse is entitled to a preferential share of your Estate, but the children share the remainder with your spouse. The Official Guardian (Ontario Government) will step in to ensure that everything you had (including furniture and vehicles) is sold, and then divide the money up, some of which will go to Toronto to be maintained in a Court bank account for the children. All this costs money, reduces the value of the Estate, causes stress and delays, and involves the Government where your own Executor could have handled affairs as you desire.

Can I make my own will without a lawyer?

Yes. A hand-written will is called a holographic will. Be sure, however, that you consider having a lawyer review the will to advise of any possible errors. Drafting your own will can be dangerous, and may expose your Estate to unnecessary litigation and expense. You may also fail to include certain details which you would have wanted if you had thought about them. Often a lawyer will be happy to review a hand-drawn Will without charge, unless a formal will is thereafter drawn.

If everything I own is joint with my spouse, do I still need a will?

Yes. The term “joint” usually means that the survivor gets everything. If it were true that everything you own is joint with your spouse, this would be some consolation; however, there are in fact probably many assets (cars, furniture, the odd bank account, etc.) which are not necessarily joint, so you may be back to the standard problems described above. Furthermore, if you and your spouse die in the same car accident, for example, there is clearly no survivor to inherit, so again you have the uncertainty which arises without a will.

If everything of any value is in my spouse’s name, and if my spouse has a will leaving everything to me, do I still need a will?

Yes. Even assuming your spouse dies before you do (in which case you inherit the Estate), if you die within days after your spouse (from injuries suffered in the same accident, for example) and you haven’t written a will, then once again the question arises, “Who gets it?”.

Do I need a will to appoint a guardian for my infant children?

No. The Court will exercise ultimate authority regarding the custody and guardianship of your children. However, your nomination of a guardian in your will or hand-drawn Codicil (amendment) to your will will at least be a clear indication to the Court of the person whom you approve for the task.

Can I dribble my bequest to children over a period of years?

Yes. While it is possible to sprinkle income and capital to infant beneficiaries pursuant to the terms of a trust in your will, there are important considerations if the child is over the age of majority and therefore entitled to claim his or her full inheritance immediately. It is also important to consider the cost of managing a trust over a long period of time (legal, accounting, tax, etc.).

If I already have a will and I am getting married a second time, do I need a new will?

Yes. A will is revoked by marriage. Even if the terms of your current will are satisfactory, you must do another will.

 Am I required to leave something (even $1) to my children in my will?

No. Note however that if your child is a dependent, the child may have a claim. The same applies to any other relative whom you may have been supporting or obliged to support during your lifetime.

 If my executor finds the work too much, can he or she delegate duties to someone else?

No. The general rule is that “he who is delegated cannot further delegate”. There are however limited circumstances in which the delegation of investment powers to a financial advisor would be both appropriate and permitted. Apart from that your will should always have an alternate named in case the first choice is no longer able or willing to complete the administration of your estate.

Are there ways to avoid having to probate a will?

Yes. Probate is the legal process by which the Court authenticates the will of a deceased. The authentication is often for example required by a bank before releasing substantial sums to someone who purports to be the executor of the deceased’s will. The bank wants the assurance of the Court that this is in fact the last will of the deceased. A simple device used to circumvent the need for probate is to put the bank account (or other asset such as real estate) in the joint names of the owner and his or her child so that upon the death of the owner, the ownership of the asset automatically devolves upon the surviving joint owner, thereby eliminating any need either to produce the will or to proof it. It is however imperative in such cases to ensure that the child signs a trust agreement confirming that the ownership of the asset remains with the parent until death, and that after death the child will distribute the asset in accordance with the terms of the deceased’s will.

Can I dictate my burial instructions in my will or otherwise?

No. Pre-arranging your funeral, while an extremely good idea, does not in fact bind the executor of your estate even though it is highly likely that the executor will observe your wishes.

POWERS OF ATTORNEY:

If I am married, do I need a Power of Attorney?

Yes. The fact that you are married does not give your spouse the legal right to manage your affairs. To illustrate, you may not even live with your spouse.

If my spouse is my Executor, do I still need a Power of Attorney?

Yes. Your Executor is appointed by your will, but a will is only effective after you have died. As long as you are still alive, you have no one who has the right to look after your affairs (unless you have a Power of Attorney), without getting a person appointed by a Court of Law at considerable expense. Pending such appointment, the Public Trustee may have to become involved at your expense.

Does my Attorney have the right to tell my physician to “pull the plug” if there is no reasonable prospect of my recovery from physical or mental illness?

Yes. This is a relatively new development in the law effective around the beginning of 1995. This aspect of your Power of Attorney is directed to matters relating to “Personal Care” and is sometimes referred to as a “Living Will” since it covers the situation where you are still alive but you might as well be dead. Technically, you can have two separate Powers of Attorney, one a Power of Attorney for Property Management (financial) and the other a Power of Attorney for Personal Care (medical); however, it is possible to combine the two features into one document, unless you object to the same person(s) acting in both capacities.

Do I need more than one Attorney?

No. It is not unusual to appoint one Attorney only; however, you are advised to appoint an alternate Attorney if the first choice is unable or unwilling to act.

Is a Power of Attorney only for use when I am mentally incompetent?

No. Unless you expressly restrict the authority in your Power of Attorney the document may be used by your Attorney (which by the way means “agent”, that is someone who works for you) at any time. This may be helpful if you are on trip at some distance from your home or for general business purposes during your temporary absence. If you attempt to restrict the use of your Power of Attorney only to those situations where you are incompetent, the question arises “What constitutes incompetency?” and “Who decides?” both of which questions can cause significant ambiguity and delay especially in cases of emergency.

Can my Attorney change my will?

No. This is the only thing your Attorney cannot do for you.

If I become incompetent, can my Attorney transfer my assets to our joint names to avoid probate in the event of my death.

No. The general rule is that anything which smacks of self-interest by the Attorney or which has the appearance of being a testamentary disposition (a will) runs afoul of the common law proscriptions. There are however exceptions but they need to be carefully crafted in the Power of Attorney in order to be sustainable at law.

Is it imperative that my Power of Attorney is registered?

No. Registration is usually only required where real estate is involved in which case you or your Solicitor will arrange to register the Power of Attorney at the Land Registry Office to permit your Attorney to deal with real estate which is in your name (either alone or with another person).

This information is not to be considered a complete and reliable statement of law. It is provided for discussion purposes only and without legal liability by the author.