Legal Issues

Wills, probate, joint property, estate taxes, selecting estate trustees/attorneys for property, personal care and other issues may appear somewhat intimidating at first.

Fortunately, with a little guidance and preparation, dealing with such matters does not have to be so overwhelming. Planning ahead and revising your plan often will help avoid unnecessary grief and confusion in the end. ‘Estate Planning’ includes all of the following issues and documents.

Administration Of A Will

A Will is an instrument by which a person (the “testator”) makes a disposition of his/her property, to be performed or take effect after his or her death.

A well-drafted Will may provide for the welfare of the testator’s family, distribute the testator’s assets in accordance with his/her wishes and secure the efficient management of the testator’s property.
Handwritten Wills (“holographic Wills”) can be made by a testator without the services of a lawyer, but problems can arise if not done properly and/or in accordance with applicable legislation.

A properly drafted Will can be a simple, inexpensive way to address many estate-related matters and can make matters run much smoother upon death.
While there are many benefits to having a Will in place, there are some things that may not be accomplished in a Will. It is important to keep in mind that some items may not flow through your estate and thus may not be distributed in accordance with your Will.

During the estate planning process, it is important to speak with a lawyer experienced in such matters and knowledgeable of your unique situation.

A well-designed estate can help minimize probate costs, estate taxes and can alert you to any potential statutory claims, that may impact your ability to deal with your assets as intended.

A lawyer can discuss any potential claims that a “dependant” may have under Law, and/or with respect to any potential claims or entitlements. An awareness of such responsibilities and rights can help prevent unintended consequences or surprises upon death.

In addition to certain statutory claims, there are other legal limitations that must be considered when drafting a Will.

Documents such as a marriage or cohabitation agreement, a separation agreement, or a shareholder’s agreement (with buy/sell provisions, or option agreements) may also affect your Will plan and thus it is important that such information be shared with your representative(s) when designing an estate plan.

In addition to determining how your estate will be distributed, a lawyer can speak to you about choosing a Personal Representative (Executor) and the considerations involved in selecting an appropriate person (or professional) to administer your estate.

The potential responsibility and work involved in being a Personal Representative (Executor) can be significant and thus appointing someone with the financial acumen and willingness to take on this responsibility is a must.

Often times, people assume they must appoint a relative or child to act as a Personal Representative (Executor) because it would be “an honor”. While it may be considered “an honor” for some, the primary considerations should be choosing someone with the patience, ability and willingness to carry out this responsibility.

Powers Of Attorney

A power of attorney is an instrument by which a person  (principal) authorizes another person (the “Agent”) to act on his or her behalf. It is quite common for people to execute a power of attorney for healthcare and a power of attorney for property and finance at the same time of drafting a Will.

In a power of attorney for property and finance, the authority granted to an Agent may be general in nature and thus  may authorize the Agent, to act on the grantor’s behalf in conducting his or her financial affairs. Alternatively, the power of attorney may be quite narrow, authorizing the attorney to perform specific acts, such as the sale of specific assets (house, car etc.), the conduct of banking, or the transfer of securities.

Similarly, in a power of attorney for healthcare, the authority granted to an Agent is the authority to make, on his or her behalf, decisions concerning the grantor’s personal care, such as healthcare, shelter, nutrition, clothing, hygiene and safety.
While you can appoint more than one attorney, it is important to decide whether they are to act “jointly” or “jointly and severally”. Depending upon where your Agent resides, such a distinction may have significant practical considerations.

Information Gathering

Upon death, one of the first things to do is to gather as much information as possible. It is important to look for and gather any Wills, deeds, financial documents, notes and insurance policies, etc., that the deceased may have.

As a starting point, the testator should consult the testator’s lawyer as sometimes original Wills have been kept at the lawyer’s office.
Upon death, you may want to ask the lawyer to provide notarized copies of the deceased’s Will.
Before estate matters can be pursued (i.e. transferring a house or automobile, other legal matters), a copy of the death certificate is also required.

Please speak to the funeral home about obtaining certified copies of the death certificate (as some agencies will not accept photocopies).