Many opportunities are available to grant all or part of an estate to specific beneficiaries, to limit the bequest to the use of an asset over the course of a beneficiary's lifetime or to set up trust for beneficiaries or dependants on such terms as the testator deems just. In this regard, the distribution of your estate is limited only to your imagination.
- If you have no children, the total value of your estate shall pass to your spouse, if married. This will occur even if you are separated from your spouse in the event that you do not have a Separation Agreement or Judgment of Divorce;
- If you have one child, the first $200,000.00 and one half of the remainder will be passed to your spouse with the remainder distributed to your child;
- If you have more than one child, the first $200,000.00 and one third of the remaining two thirds in excess of $200,000.00 will be passed to your spouse with a the remainder divided equally among your children;
- In the event that there are no relatives surviving as determined by the Act, the balance of the estate is acquired by the Crown. All opportunity to plan the distribution of the estate will be lost;
It is important to note that the Family Law Act of Ontario provides that a spouse may elect to take his or her share of the estate either pursuant to the Will or according to the distribution of Net Family Property under the Act. A Will can be used to lessen the impact of that legislation.
Furthermore, the Family Law Act provides that inheritances acquired by a beneficiary by Will or otherwise during the course of marriage are exempt from division between the spouses. However, in the absence of a direction by Will to the contrary, any income accruing as a result of the bequest is divisible between the spouses. In other words, if you were to die without a Will and your daughter inherited your estate, in the event of a separation between her and her husband, the husband would be entitled to 50% of any income generated from the inheritance from the date of marriage to the date of separation. In the case where the inheritance is acquired early in the marriage, the income generated over the course of the marriage can often be greater than the original bequest.
Powers of Attorney are used to grant to the recipient the authority to manage the affairs of the grantor.
Pursuant to the Powers of Attorney Act and the Substitute Decisions Act of Ontario, a Power of Attorney can be used to manage the property of the grantor and also to provide for the personal care of the grantor in the event of an incapacity.
With regards to property, you can designate someone to act on your behalf relating to all or specific property which you may have at the time of your incapacity. With a General Power of Attorney relating to property, you can designate a person to do anything that you could do with your own property or restrict the use of the attorney to the management of specific properties.
A Power of Attorney for Personal Care is granted to someone who would make decisions with regards to your health and well being in the event of a mental incapacity. These would be decisions relating to medical health care, life support and treatment. In a Power of Attorney for Personal Care, you can specifically refuse certain types of treatment should you so desire.
A Power of Attorney will allow your affairs to be conducted by someone whom you trust without adding to the burden of a loved one the necessity of bringing an action before the Courts in order to acquire control of your assets in the event that you yourself cannot control them.
Please feel free to contact me should you have any questions or concerns in this area. I would be most happy to assist you in anyway that I can.