The lack of a proper estate plan can be devastating for those you leave behind. This can be especially so for those with blended families, children with special needs, addictions or disabilities, or those with complex estates. Farm succession planning is imperative to avoid disputes and ensure fairness to stakeholders.
Most of our clients do not require exceedingly complex estate plans, and for them, we offer competitive flat fees for packages of wills, enduring powers of attorney and personal directives, for individuals and couples. All of those packages include two attendances with a lawyer of up to one hour (first, to take instructions and second, to sign) and the preparation of the documents. In your first attendance, we will review your assets, your family situation, your wishes, the likely effect of taxes on your estate, and determine a path forward.
Planning for Death
We can assist in planning your estate, whether it is simple or complex. Estates requiring special consideration include those involving:
- blended families;
- children with special needs, addiction issues or physical or mental disabilities;
- people raising grandchildren;
- farming operations;
- beneficiaries who are likely to quarrel.
The most common planning tool is a will, however we can assist in setting up more complex structures if that is determined to be the best way forward, such as family trusts. The complexity and cost, paired with changes to tax laws, make those less attractive than they were in the past.
Estate planning is often wrapped up in succession planning for a business or farm. Our experience in those areas enables us to assist in both areas, and to ensure that your estate plan does not conflict with any succession plan which may already be in place.
A well-planned estate will sometimes include inter vivos transfers of property to beneficiaries, sometimes outright and sometimes jointly with the donor, however, we caution people that there can be many risks to this type of planning and it often fails to achieve the intended goals. We do not recommend that you implement this type of planning without first obtaining legal advice.
It is possible for people to create holograph wills or to prepare wills using online services or form kits. We caution you that an ounce of prevention is worth a pound of cure. Most laypeople are not good will-drafters and holograph wills are rife with problems. Will kits seem almost perfectly designed to increase the frequency of court applications. Even if the will you found online is a valid will, in and of itself, the outcome of your estate may not be what you intend due to unknown aspects of the law. We see these problems all of the time, and most of our estate litigation practice results from wills which were not prepared by lawyers.
The financial cost to your estate, if there are problems with an improperly planned estate, will exceed the cost of a proper estate plan significantly. We have had success in rectifying problems with wills prepared from will kits, etc., however the cost has generally been around five times the cost of having done it properly in the first place.
The human cost of failing to properly plan your estate could be incalculable. Rifts in families which last decades, or forever, are created with alarming frequency when problems arise in estates.
Our goal is to create clear high-quality estate plans that reflect your wishes while optimizing certainty, tax efficiency, fairness and cost-effectiveness, while minimizing the potential for challenges or estate litigation. We do not offer “rock-bottom” fees for wills, because we believe that lawyers ought not to be simply drafting wills based on client’s instructions without first exploring their circumstances as a whole to ensure that we are attaining those goals.
Planning for Incapacity
A proper estate plan includes a plan for incapacity, which is generally achieved with a personal directive and enduring power of attorney. The personal directive appoints someone to make your personal and medical decisions if you have lost capacity while the enduring power of attorney appoints someone to make your financial decisions and can take effect immediately, if you lose capacity, or upon the occurrence of some other contingency.
The chances of you or your spouse becoming incapacitated at some point during your life may be higher than you think. If that occurs and you have not planned for it, the fallback legislation is the Adult Guardianship and Trusteeship Act which enables a court application to be made to obtain guardianship and trusteeship over an incapacitated adult. Unfortunately, that process is time-consuming and expensive, and if you ever find yourself needing to use it, you will regret that your loved one failed to plan for their incapacity.
You may think this is unnecessary if your assets are all jointly-owned with your spouse. This is not the case. If one spouse becomes incapacitated without an enduring power of attorney in place, the other would not be able to sell a jointly-owned home without first obtaining a trusteeship order at great expense in time and money. Further, registered accounts such as RRSPs and TFSAs cannot be owned jointly, and the beneficiary designations have no effect until death, so you would not be able to access the funds in your spouse’s registered accounts.
The modest cost of personal directives and enduring powers of attorney make it a “no-brainer” to put them in place, given the peace of mind they can afford to you and your family.