General Legal Services

Wills and Estates

What is a Memorandum to a Will?

By on Aug 1, 2017 in Wills and Estates

What are they? They are a special document that goes with a will They are used to give personal possessions to loved ones; they are useful for letting an Estate Trustee know who you want to receive certain items There are two types of Memoranda (not the technical terms): Discretionary Mandatory The differences are: The main difference between the two are that the “Mandatory” kind is referred to in the will and must be attached to the will to be able to probate the will What I call a “Discretionary Memorandum” is also usually referenced in the will, but, if it is, special wording is included in the will to clarify that it does not have to be attached to the will for probate purposes Why do people care about them? Testators often have deep personal attachment to personal possessions Some people have heirlooms like a Rolex, grandfather clock, rings, or other jewellery that has been passed down from generation to generation Some items are valuable: • Stamp collection • Sports memorabilia • Tools • Musical equipment and musical instruments Estate trustees generally appreciate the guidance that they receive through a Memorandum Personal possessions are often the most difficult to deal with and raise questions like: • Do I sell the item? If so, how? • Do I give the item away? • Do I throw the item in the garbage? • Do I value the item? If so, how do I value it? Tips for Preparing a Memorandum Call the document “Memorandum” Write your name on it State the date that it is written Sign it Identify each item as clearly as possible and put the full name of the person who is to get the item and what the person’s relationship to you is If you have an appraisal of an item that you refer to in the Memorandum, put the appraisal with the Memorandum Take photos of the items and put the photos with the Memorandum with the name of the item and recipient on the back of the photo Send a copy of the Memorandum and any updates to the lawyer who prepared the will If making a second Memorandum, state whether it is to...

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What happens to insurance proceeds if the designated beneficiary dies?

By on Mar 21, 2017 in Wills and Estates

A person who purchases life insurance is called the policy holder or policy owner. Life insurance policies typically allow the policy holder to designate a beneficiary to receive the proceeds of the insurance when the person dies (assuming the life that is insured is that of the policy holder). In some cases, an alternate can also be selected, but, what happens if there is no alternate? Does the insurance go to the estate of the beneficiary; the estate of the policy holder; to the government? You may be happy to know that the insurance money does not go to the government. It goes to the estate of the policy owner. If the policy owner had a will, the insurance will be distributed according the will. If the policy holder did not have a will, it will be distributed according to the Succession Law Reform Act, R.S.O. 1990, c. S.26 (SLRA) provisions that deal with distribution of intestate estates. The SLRA provides for a hierarchy of beneficiaries that start with the spouse and children of the deceased at the top. Note that it is only married spouses who inherit pursuant to the SLRA, not common law spouses. Note that this article is intended to provide general information with respect to Ontario Insurance policies of people who live in Ontario who have beneficiaries who also live in Ontario. For information specific to your particular circumstances it is important to consult with a lawyer in your particular jurisdiction about your particular...

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Powers of Attorney for Property and Personal Care what they are and how they differ

By on Mar 28, 2016 in Wills and Estates

Powers of Attorney for Property are used to give someone else authority to deal with your property and your obligations with respect to Property Powers of Attorney for Personal Care are used to give someone authority to deal with matters related to your health and personal care and can also be used to express your wishes in that regard The Substitute Decisions Act, 1992, S.O. 1992, c. 30 and the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A are both important pieces of legislation in Ontario in terms of the law with respect to decision making for a person who is not legally able to make decisions for themselves and for setting out the formalities of what to do to have someone else put in place to make decisions on your...

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What can a person do with a Power of Attorney for Property?

By on Mar 28, 2016 in Wills and Estates

A Power of Attorney for Property may and usually does include authority to the attorney (the person you give authority to) to: write cheques from your bank account; deal with service providers for you like to call Hydro and find out if you owe money; deal with your real property as in to sell your house or mortgage your house; represent you in litigation such as to start or defend a law suit on your behalf; look after your obligations to government such as to file your income tax returns; look after your dependents such as to make payments for things like child or dependent support can be misused, so be sure to chose an Attorney you trust Payments for benefit of the Attorney A Power of Attorney for Property can authorize a person to make payments for their own benefit even if they are not a dependent If a Power of Attorney does not authorize gifting or the use of money by the attorney for his or her personal use, it will be unlikely that anyone would knowingly permit that to...

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What is the purpose of a Power of Attorney for Personal Care?

By on Mar 28, 2016 in Wills and Estates

A Power of Attorney for Personal Care allows you to choose the person or people who will make decisions for you (this is especially important if you do not like the one provided for in the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A. Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A – Hierarchy of Decision Makers – s. 20(1) A Power of Attorney for Personal Care can be used to help give your loved ones direction as to how you would like to be cared for and what decisions you would like made if you are incapable of making decisions for yourself Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A gives protection to these wishes by providing that prior competent wishes are to be respected. Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A – Prior Competent Wishes – Best Interests and 21(1) requirement to give or refuse treatment according to a known wish A Power of Attorney for Personal Care might include direction as to whether you might want to be resuscitated; whether you might want to be cared for at home or in some other type of facility; whether you would want to be kept on life support or have life support disconnected and under what circumstances. A Power of Attorney for Personal Care can also deal with Organ Donation and whether you want to have your organs donated or...

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Who should I tell that I made a Will?

By on Feb 22, 2016 in Wills and Estates

As a lawyer who assists clients with the preparation of their Wills, I often get asked by my clients who they should tell they have made a Will. What I tell people is to be sure to tell your Estate Trustee that you have made a Will. If you have an alternate trustee named in case your first choice person is not able to do the job, you should also tell your estate trustee. I provide a few business cards with the copy of the Will that I provide to my clients and recommend to my clients to provide the business card to their Estate Trustee or Trustees. There are a few reasons that it is important to tell your estate trustee where your Will is – all of those you have named. Often spouses come together to prepare their Wills. It might seem unnecessary then to tell anyone else who prepared your Will, but, if your spouse dies before you or becomes ill such that he or she cannot remember who made the Will, then the named estate trustee may not know who he or she is, the beneficiaries may not know who they are and as such may have difficulty locating the Will. Often the testator will have a copy of the Will and the original is kept with the lawyer. If the copy of the Will is in a safety deposit box for example, the estate trustee may not know the box exists or may not be able to locate the key or to otherwise access it. If you cannot access the Will you will not be able to look at it to see who is the estate trustee or who the lawyer was who prepared it. You may not even know whether the testator made a Will. In summary, to ensure your wishes are respected, it is important to tell your Estate Trustee(s) that you made a Will and where the Will can be found. This article will be relevant for more typical circumstances of testators. If you have concerns about sharing information about your Will with your Estate Trustee(s), you should consult the lawyer who prepared it for you or some other lawyer experienced...

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