Wills, Powers of Attorney and Estate Planning
Do I really need a will?
Modern living is very complicated whether you are single, married, or living in common law with a partner.
Every adult person in Ontario needs a will.
A will is the single most important device that you can use to ensure that your wishes are carried out when you die.
Without a will, when you die there is a possibility there will be greater sadness and loss for those you leave behind.
Why do I need a lawyer when I can simply do a will kit?
Yes, you need a lawyer.
If anybody were to challenge your will, there is a much stronger likelihood that your wishes will not be carried out after you die if your Will was prepared without the skill and attention of a lawyer.
I already have a will but I am getting separated (or married) do I need to update it?
Yes, you need to review whether your current will be satisfactory for your new position in life.
If there ever be a challenge as to the meaning of your will, the fact that you have a will prepared with your change in life and mind stands the best chance that your wishes will be carried out. By way of example, it is a good idea before marriage to make a will anticipating that you will be married. The will itself will include words to the effect “I intend this my will to be effective in the event of my marriage to …..”
What is the process and is it expensive?
Often the legal expense of wills can be determined in advance depending on your circumstances.
Most persons need more than just a will. Most individuals need 3 documents.
1. a will, that controls your property can then.
2. a power of attorney for property that controls your property while you are alive but incapable.
3. a power of attorney for personal care that controls your body and health care while you are alive but incapable.
The circumstances that can determine the cost of your will include:
• For A Single Person With No Support Obligations; Often, due to the simplicity of an individual’s circumstances, the legal cost is low in comparison to other circumstances.
• A Couple In An Original Marriage; Also, a couple in an original marriage with children only of that marriage can obtain their wills and powers of attorney at a low expense in comparison to more complex circumstances.
• More Complex Circumstances Such As Such As Common Law Partnerships, Second Marriages And Blended Relationships; Often modern living can require a great deal of thought when making one’s wills and powers of attorney. There can be a consideration of your wishes concerning an original family, stepchildren, insurance and more. Though these costs be higher than some circumstances, a careful early discussion can identify most costs in advance. There are options that are interesting for both partners whether the marry or not.
In all cases: Legal costs are made up of a combination of legal fees plus HST, out-of-pocket disbursements and registration costs. When securing quotes for legal services be sure to ask for all costs and not simply the legal fee.
If possible, obtain the fee quote in writing.
I provide legal fee quotes upon request.
Lawyers offer more than simply filling in the blanks. In addition to receiving your instructions, we provide counsel on your estate plan, look at your family dynamics and assets, canvass appropriate candidates for executor or attorneys so that you make a clear and informed decision on your will, powers of attorney and estate plan.
Once you have made that decision, a lawyer offers the opportunity to receive your instructions and clearly draft your exact intentions, thus avoiding ambiguity and misinterpretation which could lead to further costs or ill feelings.
Further, your lawyer provides integrity to the execution process of your wills and powers of attorney giving added protection against challenge due to issues such as incapacity to sign the documents, provide instructions, or potential undue influence from third parties.
Where are the wills kept once they are signed?
We ensure that your documents are protected whether you keep the originals or entrust them to us.
When we have finished our work the documents are distributed as you may direct.
Copies: you will always have a complete set of digital files that we deliver to you by email. They are a true and correct copy, as signed and executed, of the originals. You will be guided as to how you should keep them.
Originals: you have choices and can retain the originals in your own physical possession or you can entrust them to us.
If you entrust them to us you can be confident that :
that that the originals are maintained in a fireproof/bombproof enclosure
that you can recover the originals back at no charge any time simply by giving a written request.
that In the event that I were no longer in business or deceased, your original documents will be under the safe control of my associate in law, Dennis McEniry.
That in the event that neither Dennis McEniry nor I were in business, or deceased, that you will be notified of where you can recover your original documents and in the ultimate event you can recover them through making inquiries with the Law Society of upper Canada.
What are Powers of Attorney and why do I need them?
Every adult person needs a power of attorney for property and a power of attorney for personal care. Though they share the same name in part, “attorney”, they are very different documents.
• You need a power of attorney for property so that, in the event of your illness or inability to represent yourself, your attorney can stand in your place and bind you is if it was you signing. This can be very important when it is necessary to sell the residence, transfer assets at a time when you are unable to take on that responsibility.
• You need a power of attorney for personal care so that, if you are disabled and cannot speak for yourself, your attorney can ensure that your healthcare needs are taken care of. It makes a difference of someone speaking for you.
What is probate and why would I need it?
“Probate” is an old legal term, still often used, to describe the process where a court will approve a deceased person’s last will and testament.
The word “probate” derives from the Latin verb “probate” meaning “to prove”.
Since about 1994 in Ontario the probate process has been changed to mean apply to the court for a “Certificate of Appointment of Estate Trustee”. The short form for this is CAET.
The purpose is to obtain a certificate that the will is the authentic will of the deceased and that the “executor” [now called an “estate trustee” is authorized to act under the will.
What drives the need to obtain probate or as now called CAET is that the public assets of the deceased cannot be passed on to the beneficiaries until the court approves the will or the appointment of an estate trustee without a will.
The term “public assets” is generally used to describe the assets that require court approval of the will before they can be transferred. For the most part these assets are land, publicly traded stocks and assets held by banks and trust companies .
The term “private assets” is generally used to describe your private property such as coin collections, art, shares in the private corporation. Sometimes people will instruct their lawyer to prepare both a public and private will. With both wills, public and private, there can sometimes be considerable savings of both lawyer’s fees and Estate Administration Tax
I heard I can make all my assets including my house joint with my children to avoid estate tax, should I do it?
What are my legal costs?
Legal costs are made up of a combination of legal fees plus HST, out-of-pocket disbursements and registration costs. When securing quotes for legal services be sure to ask for all costs and not simply the legal fee. If possible, obtain the fee quote in writing. I provide legal fee quotes upon request.
What about land transfer tax?
If you are purchasing, you may have to pay land transfer tax which we can calculate. Land transfer tax is based on a formula related to the purchase price and may be increased if you are buying in certain municipalities, such as Toronto. First-time home buyers may be exempt from paying a portion of their land transfer tax but the criteria in qualifying is a bit complicated so we recommend discussing this with counsel before assuming entitlement to the exemption.
Are there costs related to my real estate purchase financing?
There may be costs charged by your lender associated with your financing, which would include possibly mortgage and bridge loan financing fees. Further, depending upon the extent of your down payment, you may be obliged to pay an insurance fee, provincial sales tax on the insurance fee and possibly other administrative charges or brokerage fees. Be sure to clarify your overall cost with your mortgage lender as well as gain an understanding of the net proceeds being made available to you to use on your purchase.
Are there any other costs I need to worry about for budgeting purposes?
Yes, there may be adjustments to the purchase price for property taxes or condominium fees, which will be adjusted on closing to the purchase price. We provide you with these adjustments prior to closing. There also may be additional costs on your sale including your commission plus HST, mortgage penalty, etc. You would be prudent to secure an exact calculation of these figures from your real estate agent or mortgage institution prior to committing to the real estate transaction.
I am purchasing a property with my new partner and putting in the money myself or receiving money from my parents, how can I protect my interest?
We strongly recommend a cohabitation agreement when the parties to a purchase are entering the transaction from vastly different financial positions. Usually, these agreements can be completed quite simply and can be restricted to the investment in the property or extend to other family law related issues.
In order to purchase my property, I need financial assistance from my parents, how do I protect their interests?
In addition to the cohabitation agreement identified above, we often suggest that a trust agreement be prepared when a parent has to be placed on the deed to the property in order to qualify for mortgage financing. This provides protection to both parties and avoids the necessity of land transfer tax or potential capital gains issues. The agreement can be completed for a nominal additional fee.
I'm new to purchasing a property and don't know what is expected of me to complete?
We work closely with our real estate clients, particularly first-time buyers, and provide timely instruction on items that need to be addressed. In particular, you will be expected to arrange your mortgage financing, house insurance and although we arrange for utility services capped with final bills to the seller, we recommend that you contact the utility companies and provide them with your contact information.
At what point of the real estate transaction should I contact a lawyer?
Typically, a lawyer is contacted once you have signed the contract to buy or sell the property and all conditions have been removed. However, if you have questions or concerns regarding the negotiation process, do not hesitate to contact your lawyer to receive legal advice prior to signing the Agreement of Purchase and Sale.
My real estate agent or mortgage broker has recommended a lawyer, do I need to follow their recommendation?
While the advice of professionals acting for you is important, we recommend you balance their recommendation with a reference from trusted friends or family members who have gone through the process.
Is there a difference between buying a newly constructed property and a resale property?
Yes, there are much different considerations in buying a new property and in particular a new condominium property. In newly constructed properties, your lawyer will be involved at the outset in reviewing the contract for you as there are issues such as adjustments to the purchase price, HST related issues, interim closings, home warranties and potential extended closing dates which needs to be addressed. Our practice is to review the agreement in its entirety and provide a written opinion during the conditional or cooling-off period so that our clients can make an informed decision on acquiring a new property.
What is title insurance and why do I need it?
When we provide a fee quote, we usually show the title insurance cost as a disbursement. It is a onetime fee for your lifetime of ownership of the property or until such time as you refinance your mortgage. It is an insurance policy that insures both you and your mortgage lender against financial loss against unknown title defects that may otherwise be disclosed in several ways such as an up-to-date survey. While we conduct our due diligence on your behalf, the title insurance policy provides added protection for such items as mortgage fraud and is a much more cost-effective way of handling your purchase transaction when all costs are considered.
My parents are downsizing, can I assist in selling their property?
Yes, often times children of our elder clients get involved in the sale transaction and facilitate the sale and potential purchase or relocation to a more suitable setting. Often times, a Power Of Attorney for property is utilized to assist a parent in the sale transaction. Care must be taken to carefully document and track the sale proceeds and their eventual deposit or usage on a new purchase.
Suite One (Ground Floor)
3310 South Service Road
Burlington, Ontario L7N 3M6
Weekdays : 10:00 – 18:00
Weekend : Closed