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When a person dies without a will, all of that person's property is distributed according to a formula fixed by law. Without a will, legal costs are increased. It can also lead to hard feelings. Finally you will have no say as to who will look after your affairs after you have gone.
Preparing a will is relatively inexpensive and not time consuming.
Living Wills - Personal Directives
A personal directive is a legal document which gives instructions on major non-financial personal decisions if you cannot make your own decisions:
- A personal directive lets you choose another person, an agent, to act on your behalf and make decisions for you when you cannot make them yourself.
- Making a personal directive is optional and voluntary.
- It can't be used to request assisted suicide, euthanasia or anything else illegal.
- Some of the issues that can be addressed are:
- medical treatments you would or would not want,
- where you would like to live,
- who you would like to live with, and
- choices about other personal activities (recreation, employment or education)
Enduring Power of Attorney
This is only available in some provinces.
This type of power of attorney is sometimes called "durable power of attorney" or "springing power of attorney" which "springs" to life when a certain event, specified in the power of attorney, has taken place.
An Enduring Power of Attorney allows you to appoint a trusted individual who will have authority to run your affairs while you are mentally incapacitated. If you do not have an Enduring Power of Attorney, you will have no control over who becomes your trustee and your spouse and/or family may be forced to hire a lawyer to bring a Dependant Adult Application. There could also be a delay factor in appointing such a trustee which could be detrimental to your estate or business interest.
A simple definition of a trust is property given by a person called the donor or settlor, to a trustee, for the benefit of another person (the beneficiary or donee).
Trusts are either:
"inter vivos", also called a "living trust", in which the settlor transfers the property to the trustee in his or her lifetime.
"testamentary trusts" are created by will and transfers property of the deceased settlor to a trustee for the benefit of a beneficiary.
Type of trusts
Express trusts are created by clear statement by the settlor to create a trust.
Resulting trusts are trusts that are presumed by the court from certain situations. Similar to a constructive trust but for resulting trusts, the court presumes an intention to create a trust; the law assumes that the property is not held by the right person and that the possessor is only holding the property "in trust" for the rightful owner.
Constructive trusts are trusts which a court declares or imposes onto participants of very specific circumstances such as those giving rise to an action for unjust enrichment, and notwithstanding the lack of any willing settlor to declare the trust.
Statutory trust are trusts created by the effect of a statute. They tend to be temporary in nature and serve the purpose of bridging ownership of property to benefit a certain class of individuals which the statute is designed to protect.
Estate Probate or Administration
When a person dies his estate must be administered and if a will is involved the will must go to probate.
Probate is the Court document which proves the will as the actual last will of the deceased, and confirms the executor.
If the estate is intestate (no will), then rather than probate (which is reserved for wills), the court will issue letters of administration to an administrator. If a will does not name an executor, or if the executor predeceases the testator, or if the named executor declines the position, someone will have to apply to the court as administrator to handle all probate issues.
The term "personal representative" includes executors (where a will names an executor) and administrators (where a person dies intestate, or an executor declines, and the court must name someone to administer the estate).
The office of personal representative is voluntary. Even if you are named in a will as executor, you can decline.
A personal representative has a number of duties:
to take possession of the assets,
pay the debts,
look after insurance matters and
keep proper accounts.
the personal representative stands as way station between the deceased and the beneficiary. As such, and legally, title to property goes from the deceased to the personal representative (as trustee for the beneficiaries) and then to the beneficiaries.
Some assets do not have to go to probate, such as joint property and RRSPs or insurance policies with named beneficiaries. Property in these are transferred automatically on death.