A properly drafted will allows the testator to empower his chosen representative to manage and distribute his estate upon death, and the executor has a duty to follow the directions in this very important document.

• Most wills are drafted by a lawyer and signed by two witnesses.
• Do-it-yourself wills can be legally valid, provided they are properly signed and witnessed, but they may fall short of what the testator wanted to accomplish.
• Witnesses are not required for a holograph will (one that is entirely written by hand).
• Most jurisdictions require an affidavit of execution before a will can be probated.
• A codicil is a document that changes one small part of a will. In today’s age of electronic documents, it is just as easy to revise the entire will, instead of drafting a codicil.
• Multiple wills are sometimes used to minimize probate or to deal with assets in different jurisdictions.
• In many jurisdictions, marriage revokes an existing will, unless that will was drafted in contemplation of marriage.
• The act of divorce (or the breakdown of a common-law relationship in some provinces) does not revoke a will, however the will is typically read as if the former spouse had predeceased the testator.

Dying Intestate or without a will.

Heirs unable to locate a will, or discovering the one they have is invalid, may have many questions and not know where to start. Executor advisors need to have an understanding of the enormity of this situation, beginning with the realization they are actually not the executor as they had originally thought. This is a topic that reinforces the fact that it will be much easier for the survivors to deal with the estate. If more people understood the implications of dying intestate, they would take far greater initiative ensuring it didn’t happen in their own families.

Disadvantages of Dying Intestate or Without a Will.

No Will, No Exactor

In a Will, the testator takes great care in appointing an individual or corporate entity to administer their estate on death. When intestacy occurs, the provincial or territorial government determines the eligibility of those individuals who can apply to administer the deceased’s estate. Therefore, without a Will the deceased’s estate may be administered by someone that the deceased would never have selected.

Rather than having a trusted executor appointed by the decedent, the court appoints an administrator as they see fit. This may be the spouse of the decedent, but could also be the Public Guardian or Trustee. The duties of the administrator mean they will have access to every element of the decedent’s estate, plus they will be responsible for the care of pets and property. Here is a list of the duties of an administrator:

• Make funeral arrangements, if required.
• Locate all the estate assets and make sure that they’re secure; for example, ensure that a car or building is insured, and that valuable documents are in a safe place.
• Advertise in a local newspaper for creditors.
• Sell assets that need to be sold. This includes listing and selling real estate after having it appraised; selling stocks, bonds and other securities; and valuing and disposing of other personal belongings. Sometimes, instead of being sold, assets may be given a certain value and transferred to an heir as part of their share of the estate.
• Locate all family members who may be heirs to the estate. In some cases, this involves searches throughout the world.
• File all necessary income tax returns and obtain an Income Tax Clearance from the federal tax department, confirming that all income tax has been paid.
• Put all money in an estate account and use it to pay the estate's debts, income taxes, legal and accounting expenses, and possibly an administration fee.
• Pay any money left over to the heirs.
• Finally, make a report to the relatives listing all money received, debts and expenses paid, fees charged, and details of how the estate was distributed.

As a result it will normally take much longer for the estate to be settled.

The term probate refers to a court procedure by which a will is proven to be valid or invalid. In more general terms, in today’s usage, it is commonly spoken of as a reference to all matters and proceedings related to the administration of an individual’s estate. The process itself is governed by provincial legislation as this falls under the realm of provincial jurisdiction. The federal government is not directly involved in the process and thus there are certainly variations from province to province.

The basic substantive concepts involved are relatively similar in each jurisdiction. In essence, it is the legal process whereby an individual’s assets are distributed according to his/her wishes, as overseen by the Probate Court or its equivalent in the jurisdiction in which the Will is probated. Probate Court, and in particular, the Registrar of Probate, oversee the administration of the estate to ensure compliance with legislation from a procedural standpoint as well as compliance with the deceased’s wishes pursuant to their Will.

As an executor of an estate (or personal representative, estate trustee, or liquidator as this party is sometimes referred to, dependent upon the province or territory you are dealing with), it is important to comply with the legal process set out under the Probate Act or such other corresponding legislation. Otherwise, they risk incurring future responsibility to reimburse a third party or beneficiary as a result of a failure to competently complete their duties. If they comply with the procedure and directions from the Probate Court and subsequently close the estate, then not only will they successfully carry out the role entrusted to them by the deceased through their final instructions, they will also benefit from the protection afforded by the Court of Probate, including the final distribution of the estate.

It is recommended for many reasons that seniors have a power of attorney.

What is a Power of Attorney for Property?

A Power of Attorney is a legal document that gives someone else the right to make decisions on your behalf.

A Power of Attorney for Property, sometimes referred to as a Power of Attorney for Finances, is a legal document giving one or more persons or organizations the authority to manage the legal and/or financial affairs of another person, generally when that person is physically or mentally incapable of managing these matters themselves.

There are two types of powers of attorney, the general power of attorney and continuing or enduring power of attorney. In many cases, clients erroneously tend to think of the two interchangeably.

General Power of Attorney for Property

A General Power of Attorney for Property is a legal document empowering the attorney to manage finances and property only while the grantor is mentally capable. If they become mentally incapable of managing their property, the General Power of Attorney for Property ends and the attorney can no longer act.

Granting a power of attorney doesn’t surrender the grantor’s ability to manage their affairs so long as they’re capable of doing so. As it grants authority which may not be required immediately, it may be advisable not to release it from the lawyer until needed.

This type of power of attorney is often also used to provide powers in a limited capacity, (‘Limited’) for a specified timeframe when the grantor may unavailable.

Continuing Power of Attorney for Property

A Continuing Power of Attorney for Property continues even when the grantor becomes mentally incapable of managing property. If it only takes effect at the point of incapacity (or at another specified date), it is referred to as a ‘Springing’ power of attorney.

Where a general power of attorney continues in the event of incapacity, it is referred to as a ‘Continuing (or ‘Enduring) power of attorney. This chart may help to illustrate:

Mental Incapacity

It’s important to clarify how mental incapacity is to be determined. If it’s overly onerous, or insufficiently clear, it may unnecessarily delay the attorney’s ability to act.

In some cases the grantor may leave the determination to the discretion of the attorney, while others may require a letter from their physician or physicians, if multiple opinions are deemed necessary (though this may unnecessarily delay the attorney from exercising their authority).

Incapability of managing property’ more specifically means a person is unable to understand information regarding their finances or property nor appreciate the implications of making (or not making) decisions about these issues.

Advantages of Having a Power of Attorney

• It makes it clear who will be responsible for finances and property if the grantor can’t manage them on their own, even temporarily.
• The appointed attorney must manage finances and property for the benefit of the grantor and can be required by law to account for and explain how he or she is managing them.
• It can be as general or specific as necessary.
• Two or more attorneys can be appointed. The grantor can require that attorneys make all decisions together (“jointly”), or to act together or separately, if one of them is unavailable (“jointly and severally”). Alternate or successive attorneys can also be appointed.
• Having two or more attorneys could reduce potential fraudulent use of a Power of Attorney.
• A general Power of Attorney allows the attorney to look after affairs if the grantor is away temporarily or if they need help managing their affairs.
• An Enduring Power of Attorney enables the attorney to continue looking after the affairs if and when the grantor loses their mental capacity.
• If someone loses their mental capacity and doesn’t have a continuing Power of Attorney document in place, someone will need to get authority from the court to manage their affairs, which can be time consuming and expensive.

Although the above gives you general information about Power of Attorneys it is recommended that you consult with a lawyer to create one for yourself.

It is recommended that one has a power attorney for their loved one should something happen.

Please feel free to download and review the information about the different types of Power of Attorney.

Overview of executor responsibilities

After death, the executor should review the will immediately to determine their specific responsibilities. This includes any funeral arrangements. They need to obtain a death certificate, cancel any of the deceased’s open accounts which can include subscriptions, credit cards, memberships, passport, driver’s licence, health card and any benefits such as a pension. Banks, advisors and insurance companies, will also need to be notified of the death as well. The executor will need to list the deceased’s assets and seek legal advice to streamline the process.

The role of an executor

The executor is the person who has been appointed by the deceased to carry out their wishes after they pass on. They can be a friend, a family member or they can be someone from outside the family circle. A corporate executor may also be used for complex estates where there is no spouse or children who want to take on this responsibility. Executors have a fiduciary duty to hold the estate for the beneficiaries.

Here are some forms that you can download to help you with the different tasks that you may need to do as an executor. If you have any other questions or concerns please feel free to contact me.

As a Canadian Institute Of Certified Executor Advisor , there are many other forms and information that I can provide you with, if needed.