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A will is a written document with instructions about how to distribute your assets upon your death, who will administer your estate, and who will be a guardian for your children who are minors. People generally have to be 18 or older and be of sound mind to make a will. The will should be updated dependents of their own. You can appoint your adult children as your trustees gift directly to grandchildren.

If you don’t have a will at death, probate procedures are more complicated, and the distribution of assets is determined by legislation in the jurisdictions where you may live and own assets, which may not be what you want. Also, a lack of will may prompt inter-family strife as family members argue about your intentions, which are not set out in writing. No guardian will be named for your minor children. The court appointed administrator will not have the broader Trustee powers normally included in a will.

What is a will, & why do i need one ?

Wills generally fall into two categories: “mirror” spousal wills and individual wills. “Residue” means the assets left over after debts and taxes are paid, and/or what is not disposed of in other ways (for instance, joint assets go to the surviving owner, and some assets, such as life insurance policies, allow you to list beneficiaries directly on the assets). We offer very reasonable flat fees for basic mirror spousal will packages and individual will packages. Basic wills include provisions for the appointment of two estate trustees, either acting together or one primary and one substitute; one guardian for minor children; bequest to spouse and children of the marriage; and specifying the preferred age of inheritance. Our basic wills packages do not include specific bequests of assets, disaster provisions, funeral instructions or organ donation and/or discretionary trusts. We can also prepare more complicated wills and secondary corporate wills, at additional cost.

 

We usually schedule the first appointment for estate planning (about 45 minutes) to obtain the information we need to prepare your will and powers of attorney. We schedule a second appointment for signing of the wills and powers of attorney (there are two kinds of powers of attorney: Continuing Power of Attorney for Asset Management/Property, and Power of Attorney for Personal Care/”Living Will”). We prefer to schedule the will signing appointment about one week after the first appointment.

You may wish to consider who will act as an alternate trustee (executor) if your primary trustee is unable or unwilling to fulfill the role; a guardian for the children (not necessarily the same person(s) as the trustee); and whether you wish to have a “disaster clause” that dictates how your estate will be distributed in the event of a disaster (death of all immediate family members). For the powers of attorney, you must select a primary attorney and a substitute.

 

Our most cost-effective wills and powers of attorney package is the spousal wills package, which includes two mirror spousal wills, two powers of attorney for property and two powers of attorney for personal care. This is approximately 50% of standard market rates. We can prepare a will package on a “rush” basis, and we can visit a home, hospital or nursing home for will signing if necessary (additional costs apply).

 

We ensure that the original documents are delivered to you, where they belong, upon signing. We do not keep the original will and powers of attorney. We keep copies in our files for at least seven years (as required by the Law Society of Upper Canada), and we scan your documents and save them on our server indefinitely. We can explain this in detail when you schedule your appointment or when you meet with the lawyer.

How is the will set up?

A power of attorney is a document in which you appoint one or more people to act on your behalf in case you lose the legal capacity to deal with your own affairs.

 

The Power of Attorney for Asset Management/Property gives the person(s) appointed the right to do everything you can do, in your place, except make a Will. The Attorney is supposed to spend your money only on you and your legal obligations (like supporting your children), but there is no formal supervision of the Attorney. That said, your Attorney should keep an “accounting” with respect to the management of your financial affairs. You can end (revoke) a Power You may well ask, given the potential for abuse, why should you have a Power of Attorney? The answer is that you, even if you are a young adult, could potentially lose the ability to deal with your own affairs through illness or accident. If you don’t have a Power of Attorney, and you become incapacitated, the government in your province (the Public Guardian and Trustee (PGT) in Ontario) will step in and manage your affairs, even if you have a spouse and/or family members who are ready, willing and able to do so. After, Application procedure made by your spouse or other family member, the Public Guardian and Trustee may appoint one or more individuals to manage your affairs. This costs money, because the government usually charges for the management services, and there may be a cost involved in the appointment of an institutional trustee or administrator to manage your affairs. There may be inter-family conflict as to who should act on your behalf and/or what should be done. The person chosen to administer, on your behalf; your affairs in the absence of a Power of Attorney for Asset Management signed by you; may not be the person you would choose.

Continuing Power of Attorney for Asset Management

What is this and why do I need one?

A Power of Attorney for Personal Care/Living Will is a document in which you state who can make decisions effecting your health and personal care if you are incapable of doing so. That can include giving or withholding consent to medical treatment, housing, food, hygiene, clothing and safety. Also, if your feel strongly that you would not want to remain alive in a vegetative state for any extended period of time, these instructions should be stated in a Letter of Wishes that forms a Schedule “A” to the Power of Attorney.

 

As with the Continuing Power of Attorney for Asset Management, if you do not have a Power of Attorney for Personal Care/Living Will, the government agency, the Public Guardian and Trustee (PGT) in Ontario, may step in and take over decision- making regarding your health care, even if you have a spouse and/or family members that are ready, willing and able to do so. After an Application procedure (which is about one (1) year) made by your spouse or other family member, the Public Guardian and Trustee may appoint one or more individuals to manage your health care, act on your behalf and/or make decisions about your health care. The person chosen by the PGT to manage your health care may not be the person you would have chosen. Overall, it is generally preferred that you take care of appointing your caregiver yourself, and provide instructions of your philosophy and beliefs regarding heroic measures so that if you do become incapacitated at any time during your life, your wishes will be carried out without interference or objection.

Power of Attorney for Personal Care – otherwise known as “Living Will”

We also do Probates (now called Application for Appointment of Estate Trustee With or Without a Will).

 

Probate is the procedure by which the trustee(s) or executor(s) that you have named in your will is given a certificate by the Estates Office that enables him or her to administer your will. The term “probate” is still used, but the official name is Certificate of Appointment of an Estate Trustee with a Will, or a Certificate of Appointment of an Estate Trustee Without a Will.

PROBATE

If you die without a will (intestate), probate procedures are more complicated, and the distribution of your assets according to legislation may not be what you want. The lack of a will may cause conflict between family members if they argue about your intentions. Often the greatest cause of concern is that there is no guardian named for the deceased’s children and/or no one chosen to manage finances for children who are minors. A court-appointed administrator will not have the broader trustee powers normally included in a will.

What happens if I die and I didn’t make a will?

We’re here to help. Feel free to call, email, or drop into our Oakville office. We’d love to meet you and answer your questions. If we can’t personally help you, we are an excellent referral hub. We will do our very best to point you in the right direction.


At Nachla Law Office, we provide many other services, including:

• Independent legal advice (in various areas of law)

• Invitation letters (for visitors’ visa to visit Canada)

• Opinion letters for Foreign Divorce

• Promissory notes

-Travel Consent Letter for minors

-Independent legal advice (in various areas of law)


Independent legal advice (“ILA”) relates to a private conversation a client should have with his or her own personally retained lawyer about the nature and effect of entering into certain transactions or contracts. Examples of when ILA must be offered to a client include:


1. When an unrepresented person is involved in a legal matter such as the negotiation of a family law or domestic contract.

2. When a mediator prepares a contract outlining the terms of the domestic contract reached for the partners or spouses to sign.

3. When a conflict of interest arises, a lawyer has a duty to avoid the conflict by ceasing to act for a client. However, a client may, with informed consent as a result of receiving ILA, allow the lawyer to continue to act for him or her.


Invitation letters (for visitors’ visa to visit Canada)

If you would like to invite a friend or relative to visit you in Canada, you may need to send them a letter of invitation. A letter of invitation is only one part of your friend’s or relative’s application. The visa officer will assess the applicant to determine if they meet the requirements of the Immigration and Refugee Protection Act. of invitation does not mean you are legally responsible for the visitor once he or she gets to Canada. You should still write the letter in good faith. You must tell the truth and plan to keep the promises you make in the letter.


Some visa offices may require that you have your letter notarized by a notary public.


Opinion Letters for Foreign Divorce

If you want to marry in Ontario and were previously divorced outside Canada, you must contact a lawyer for a foreign divorce opinion letter. You must submit a foreign divorce opinion letter along with your application for marriage. It is very important to contact a lawyer before getting remarried in Ontario if you were previously divorced. Failing to submit a foreign divorce opinion letter to the government prior to getting married could jeopardize your application for marriage, leading to a denial of your marriage certificate.


A foreign divorce opinion letter is a letter that a lawyer will draft and sign stating the lawyer’s opinion that the foreign divorce would be recognized in Canada. The lawyer will take into account the jurisdiction where the divorce was granted, where the parties to the divorce resided, the applicable law, and any other factors required to assess the recognition of the foreign divorce in Canada. After assessing all of the relevant factors and applicable law, the lawyer will provide an opinion on the recognition of the foreign divorce in Ontario.


The lawyer will also provide clear reasons as to why he or she believes the foreign divorce would be recognized as valid in Ontario. The foreign divorce opinion letter will make reference to the applicable law in Ontario and the relevant facts that support the opinion of the lawyer. Who can draft and sign off on a foreign divorce opinion letter? Please note that in Ontario only a lawyer who is licensed and authorized to practice law by the Law Society of Upper Canada can draft and sign an opinion letter of a foreign divorce.


Promissory Notes

A promissory note is essentially a written promise to pay someone. This type of document is common in financial services and is something you’ve likely signed in the past if you’ve taken out any kind of loan. If you decide to lend money to someone, you may want to create a promissory note to formalize the loan.


Promissory notes may also be referred to as an IOU, a loan agreement, or just a note. It’s a legal lending document that says the borrower promises to repay to the lender a certain amount of money in a certain time frame. This kind of document is legally enforceable and creates a legal obligation to repay the loan.


A promissory note is used for mortgages, student loans, car loans, business loans, and personal loans between family and friends. If you are lending a large amount of money to someone (or to a business), then you may want to create a promissory note from a promissory note template. This note will be a legal record of the loan and will protect you and help make sure you are repaid.

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