Wills, Estates and Incapacity Planning
A will is the most basic form of estate planning. A properly drawn will appoints a representative who will carry out your directions for the disposition of your estate after your death.
Some issues to consider before making a will include the following:
- Provisions for beneficiaries;
- Choosing executors and trustees;
- Choosing guardians for minor children;
- Designating beneficiaries under RRSPs, TFSAs, and life insurance policies to minimize probate fees; and
- Income tax considerations.
However, wills take effect only upon the death of the will maker and thus the will maker has no way to oversee their administration or to correct misjudgments or unfairness. Wills are not immune to attack under various statutes. Furthermore, without proper planning, wills may not take advantage of tax laws.
In addition to wills, various types of trusts can be used as a planning technique where a person has substantial wealth or there are many interested parties in the estate. Probate can be avoided if assets are transferred to a trust during a person’s lifetime but the tax implications of such transfers must first be considered.
Tax planning devices can be used to minimize the impact of tax, both annual income tax and taxes triggered by the death of the client. Our aim in advising clients on wealth preservation is to provide the most effective corporate and financial structures for each client’s needs and objectives.
Incapacity planning is important both in making decisions for end of life care and in ensuring your affairs are in order should an unexpected health issue arise. There are several types of legal documents which allow individuals to plan for the possibility of future incapability, including:
- Enduring powers of attorney;
- Representation agreements;
- Advance directives; and
- Nominations of committee.
Each of these documents grants different types of decision making abilities to the appointed person. We can help you determine which documents would serve your needs best.
If someone becomes incapable without the proper documents in place it may be necessary to apply for the court to appoint a committee. Appointing a committee is a serious legal matter as it removes a person’s right to make his or her own decisions. Once a person is appointed as committee of the incapable person, he or she will be granted the ability to make decisions regarding the incapable adult’s person (health care, residence), the adult’s estate (financial decisions), or both, depending upon what is granted by the court. We know the complexities of the specific legal criteria that must be met in order to establish a committeeship.