The need for a Will and other estate planning documentation is a given, especially if you have children. But where do you even begin? Well, let me make it easy for you …. here is the basic information you will need to provide to your lawyer at the initial meeting. Your lawyer will also ask you a lot of questions about your assets, liabilities, insurance, etc. to make sure your estate planning is structured to best meet your goals. But let’s get started with the basics!
Wills
- Executor and Trustee – Generally speaking, spouses will appoint each other as Executor of the other’s will. However, it does not have to be your spouse. It can be anyone you choose. If you do choose to appoint your spouse, you will also need to appoint at least one alternate Executor in case the first Executor predeceases or is otherwise unable to act at the time.
- Specific Bequests – You may choose to give specific items to particular individuals (for example, family heirlooms, jewellery, etc.). You may also choose to give specific lump sums of money to certain individuals. You may specify in your will what those specific gifts are, or you may choose to make a list to attach to your will. If you choose to make a list, it must be signed and dated before you sign your will, so that it can be specifically referenced in the will. If you make a list after signing your will, it is not legally binding on your Executor, but merely gives your Executor guidance in exercising his/her duties in distributing your estate.
- Residue – You must decide who you want to receive the residue of your estate. Generally, spouses will give everything to the other spouse. However, you do not have to give everything to your spouse. You can divide it equally among a list of people (for example, your children), or you can divide it into shares of any proportion and distribute those shares. You should also have alternate distributions in the situation where your spouse has predeceased you.
- Minors – If there is a possibility that a beneficiary might be under the age of majority at the time they inherit from your estate, you must decide when you want the minors to receive their share. This can be the age of majority, which is 19 years of age in Nova Scotia, or it can be any other age you feel would be an appropriate age for them to receive their share.
- Guardian – If you have children who are under the age of majority, you should appoint someone to be the guardian of them until they reach the age of majority.
- Predecease – You must decide what you would want to happen to a beneficiaries’ share of your estate if they should predecease you. One possibility is that the share could be given to the beneficiaries’ children in equal shares. If the predeceased beneficiary does not have children, the share could be transferred back into the residue of the estate and distributed among the surviving beneficiaries.
- Trusts – You must decide if you want the beneficiaries to receive the gift outright, or if you want the gift to be held in trust by your Trustee, with the beneficiary of the trust as a co-trustee. This would protect the inheritance from creditors and spouses of the beneficiary. However, it also means that your Trustee has an ongoing obligation to administer the trust and it also means that the beneficiary must consult with the Trustee whenever he/she wants to withdraw from the trust. Some people simply choose to give the gift outright and leave it to the beneficiary to decide if they want to protect the gift from creditors by, for example, investing it into an RRSP, and from spousal claims by keeping the inheritance separate from matrimonial property and not using it for matrimonial purposes.
- Funeral Directions – Some people choose to include funeral directions in their will to ensure their wishes are followed. For example, some people want to be cremated, others have already chosen a burial plot. If you do decide to include funeral directions in your will, you should ensure that your Executor and alternate Executors are aware that there are funeral directions in your will. That way, they know to review the will prior to any funeral arrangements being made.
Powers of Attorney
- Attorney – If you choose to have a Power of Attorney drafted at the same time as your will, you must choose someone to be your attorney for the purposes of managing your financial affairs while you are still alive. Again, most spouses appoint the other spouse as their attorney, but you do not have to appoint your spouse. You may appoint anyone you choose. However, you should also appoint at least one alternate attorney in case the original attorney is unable or unwilling to act. Because the Power of Attorney permits the attorney do to anything that you could do if you were able (i.e. Sign cheques on your bank account, sell your house, mortgage your house, etc.), the attorney should be someone you trust to do what you would want them to do.
- Effective Date – A Power of Attorney becomes effective as soon as it is signed. If you do not want it to become effective immediately, you can specify that you do not want it to be effective until some future event (for example, when you become incompetent). If you decide to specify when it becomes effective, you must decide how that event will be determined. So if the event is your incompetence, who decides when you are incompetent? Will it be your attorney or 2 medical doctors? If you choose to specify that it does not become effective until some future event, you should be aware that the attorney would not be able to use the Power of Attorney if, for example, you were out of the jurisdiction for an extended period of time and wanted your affairs dealt with while you were away. It would only take effect on the happening of the specific event you have identified.
Medical Consent/Health Care Directive
- Agent – You will need to choose someone to be your agent in giving medical consent on your behalf. Again, spouses will generally choose each other, but that does not have to be the case. You should also appoint at least one alternate agent.
- Advance Health Care Directive – Some people choose to give specific instructions on what they would want done if they were terminally ill. The clauses that are included in our Medical Consent form for this purpose state that, “if it looks like I am going to die within a short period of time, I do not want any extraordinary measures taken to keep me alive, only to alleviate pain”. This reduces any guilt on your agent for making a decision that they are unsure of. We now also receive instructions on the new “Assisted Dying” legislation. However, we strongly recommend that you speak with your physician regarding your particular situation and your particular wishes before meeting with us.
Disclaimer: This blog post is intended to provide general information only. The law is constantly changing and requires nuanced analysis. Therefore, nothing in this blog post should be considered legal advice or opinion. In order to obtain a legal opinion or advice on a business matter, make an appointment to speak with a business lawyer in your area.
Disclaimer: This blog post is intended to provide general information only. The law is constantly changing and requires nuanced analysis. Therefore, nothing in this blog post should be considered legal advice or opinion. In order to obtain a legal opinion or advice on a business matter, make an appointment to speak with a business lawyer in your area.