“What’s a will?”
A will is a legal document that sets out what happens to your assets when you pass away. Wills can help you accomplish several financial goals, including reducing probate fees, reducing taxes, and ensuring that your loved ones are looked after.
“What’s a power of attorney?”
There are two types of powers of attorney: a power of attorney for personal care and a power of attorney for property. Both types of powers of attorney come into play when you are incapacitated, unlike wills, which comes into play when you pass away. A power of attorney for personal care sets out how you would like medical decisions to be made in case you are incapacitated, and who will make these decisions for you. A power of attorney for property appoints someone to make your financial decisions when you are incapacitated.
“What’s the effect of separation on my will?”
Absolutely none. If you are separated and pass away, you spouse may still receive property under your will.
“What’s the effect of divorce on my will?”
A divorce invalidates any provisions of your will that deal with your ex-spouse. The rest of your will remains valid. Even though this may sound like what you want, the fact that several provisions are invalid may make your will invalid or at least incomplete.
“What happens if I don’t have a will?”
If you pass away without a will, this is known as an intestacy or dying intestate. In this case, the government has a will prepared for you in its legislation. Essentially, your spouse gets a fixed sum of money from your estate, and the balance of your estate is divided between your spouse and your children. If you don’t have a spouse, then your estate is divided between your children. If you don’t have a spouse or children, there are other rules to divide your estate between your relatives.
“Can I prevent my ex-spouse from acting as guardians for my children in will?”
You can specify in your will who will be the guardians for your children should you pass away before they are adults. However, this is not binding – it is more like a recommendation. A court will do what is in the best interests of your children. Normally that will mean your children will go to live with their other parent should you pass away.
“Can I give money to my adult children, but prevent their spouses from getting it?”
Yes, for more information about this, click here.
“What other estate planning should I think about on separation or divorce?”
Be certain to change the beneficiaries of your life insurance policies, pensions and RRSPs, if necessary. As well, you should revoke any powers of attorney you have as soon as possible.
“How do I revoke a power of attorney?”
In Ontario, there is no specific form for doing this. The revokation must be in writing, and signed by two witnesses who are both present at the time of signing. Then, send the document to your spouse, as well as to any person or institution who may know about your power of attorney or with whom your spouse may try to use the power of attorney.
“Can I prepare a will and powers of attorney myself?”
Maybe. However, of all legal services, obtaining wills or powers of attorney is probably one of the cheapest – and it’s a lot cheaper than a divorce. Given the importance of having these estate planning documents – and the disastrous consequences of not having them – I strongly recommend that you have a lawyer do this for you. Given that your divorce lawyer is already very familiar with your financial circumstances and wishes, he or she is well placed to prepare your will and powers of attorney.