The drafting of Wills and Powers of Attorneys afford your family and friends a clear picture of your intentions when you are not able to speak for yourself due to death or infirmity. These documents constitute your legacy. If you die without a Will (an intestacy), the devolution of your estate will be determined by provisions of the the Succession Law Reform Act and the Family Law Act. This could very well leave your estate to persons other than you would have wished.
Having a properly drafted Will gives you the comfort of knowing that your life’s work has meaning to those you leave behind. We will all pass. You do not want to leave those behind questioning your intent. Consult a Lawyer and draft a Will. When drafting a Will you need to consider who would be your executor and to whom you wish to leave your estate. If you have minor children, you need to consider who would be there Guardian should something happen to you while they are under the age of majority. For those persons with businesses, consideration should be given to having a Secondary Will, which deals with business assets such as shares and a privately held corporation. In many cases, it is wise for those persons running a business, especially and Inc. business to consult their accountant about the benefits of a Secondary Will.
A Will only works when you have passed. While alive, you may need to have persons appointed to speak for you when you cannot speak for yourself. These are known as Powers of Attorney, Under the Substitute Decisions Act on Ontario, there are two separate appointments envisioned. Your spokesperson when you are alive but not able to speak for yourself respecting issues pertaining to your health care and maintenance of your physical person. That can be addressed by the drafting of a Power Of Attorney for Personal Care. The next thing to consider is who will deal with your property when you are alive but not able to deal with it due to illness infirmity or absence. That can be addressed by drafting a Power Of Attorney for Property.
For those persons who have a business, they may want to have a separate person appointed for business operations when they are not able to attend to same due to illness, infirmity or absence. You can have multiple Powers of Attorney for that purpose.
Mark’s practice includes helping executors with the legal steps needed to administer the estate. There are certain forms that are required to be filed with the Court, in the event the estate needs to be probated. The term “probate” is a layman’s term. The actual legal process is known as an Appointment of an Estate Trustee with a Will.
Although there is no death tax or inheritance tax in Ontario, there is an Estate Administration Tax, which is due upon the filing of the Application for Appointment of an Estate Trustee with a Will. The Estate Administration Tax, as it stands now in 2015, is based on the value of the estate and is $250.00 for the first $50,000.00 of the estate and $15.00 for every thousand thereafter. As of 2015 an estate trustee must file with the Minister of Finance and Estate Trustee’s Report, outlining how the value of the estate was determined.
Another taxation issue to be dealt with by the executor is the fact that the deceased is liable to pay taxes for the last year of their life or portion thereof. This requires the filing of a Terminal Tax Return. In most cases, Mark advises that an accountant be retained as there may be capital gains issues in that return. In the event of long-term estate, the estate itself left to file a tax return, such as in cases where there are a number of complex issues or assets that need to be sold off over time. In most cases, the averages they can be wound up within one year. However, each case is unique and has to be dealt with on its own terms.