Wills and Living Wills - What You Need and Why

Jacqueline M. Connor for The Lawyers Weekly

Many Canadian residents wonder what would happen if they were to die without a will ("intestate"), and whether or not they should have a lawyer prepare a "living will".

Having a wills and estate lawyer prepare a will allows you to decide who will look after your affairs on your death, who is to inherit your property and what they are to inherit. A living will is also important as it eliminates the need for your family to make critical medical decisions without your guidance. It lets them know what types of medical treatment you would want administered in the event of a serious accident or illness leaving you legally incapacitated.

While it is possible to draft a will and a living will by yourself, your estate may have legal complexities that you would not be aware of without obtaining the advice of a wills and estates lawyer, as outlined below.

Why you need a will in Canada

In most jurisdictions in Canada there are laws, such as the Succession Law Reform Act (Ontario), to ensure that in the event of a person dying intestate, their property is divided amongst family members in accordance with next of kin provisions.

In Ontario, for example, if you die survived by a spouse but no children or grandchildren, your surviving spouse is entitled to your entire estate. However, a common law spouse must be named as a beneficiary in your will to inherit your property. If you are survived by a spouse and children, a "preferential share" of $200,000 will be given to your spouse and the remainder of your estate divided equally amongst your children. If you are survived by children only, then your estate will be divided equally amongst them, with the shares of children under 18 being paid into court by the estate trustee and payable to them at 18. If you have no immediate family members, your estate would be distributed to your parents, failing which it would be equally distributed amongst your siblings, a situation which you may not wish to occur. In the rare event that no heirs or next of kin can be identified, the estate will "escheat to the Crown," which means the government will be entitled to it all.

In most situations, dying intestate and having your estate distributed by a predetermined formula is less than ideal. Dying intestate, you do not have any control over who should administer your estate and care for your children while they are underage. This can potentially cause disagreement amongst your family members and create practical difficulties after your death, as well as result in additional costs to your estate.

Having a will drafted properly in Canada can minimize taxes and probate fees, leaving more money for your family members, and allows for customized trusts to be established for children under specified ages, which can be later than the age of majority. With a will, you can leave specific direction concerning the administration of your estate, and the guardianship and custody of your children.

Finally, it is essential to have a will if you want to leave a part of your estate to a common law spouse, a friend, or a charitable organization.

Why you need a living will Canada

While it used to be possible to only have a power of attorney for property it is now possible to have a power of attorney for personal care in Canada. A power of attorney for property allows the person designated as your attorney to make decisions with respect to your property or financial management in the event that you become incapacitated. Powers of attorney for personal care, which can also serve as "living wills", allow your attorney to make decisions about your medical treatment and personal care if you are incapacitated.

If you become incapacitated without having a power of attorney for personal care, and do not have a legal guardian, the governments of most provinces, through appropriate agencies, will decide who your representative will be for these purposes based on pre-approved lists which prioritize who among your family members is to be appointed as your representative. A family member who is lower in rank on this list cannot override the decision of someone who is higher up.

In Canada having a living will reduces the likelihood of disagreements amongst your family members concerning what medical treatment or personal care would be most appropriate for you in a given circumstance. Although you may assume that your family members know your wishes, they may not truly understand what you would want in a difficult situation. Your living will can be very specific or very general; specifying your wishes with regard to pain relieving drugs in the event of a painful terminal illness, or whether "heroic" measures, i.e. a respirator, should be used to prolong your life in the event that the prospects of recovery are slim. Living wills can, and should, be updated as your wishes change over time.

Jacqueline M. Connor practises with Carter & Associates, Orangeville, Ontario, in the areas of charity and not-for-profit law, wills, estate planning and estate administration

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