Do you have a will? Was it prepared by a lawyer? Do you update it regularly? Have you selected your executor and trustee carefully? Have you obtained expert tax advice on estate planning strategies to save money?
If you are answering the above questions with a confident “yes”, then good for you! However, you are in a minority. Two out of three adult Canadians do not have a will. Of those who do, many wills are outdated and have not been modified due to changing circumstances, or were done without the help of a lawyer, and could be legally deficient or void. One out of four Canadians will die suddenly, leaving no time to arrange one’s financial affairs in an organized and tax strategic fashion, if you have not already done so.
Some people think that matters involving wills, powers of attorney, and estate planning generally are simple in nature. They are anything but. They can be very legally complex in many cases. This can result in litigation, fractious family discord, more money paid to the federal and provincial governments than necessary, and a legacy of memories about your lack of preparedness that are less than flattering. These doomsday scenarios can all be avoided with skilled advance professional advice and strategic planning. If you own or intend to buy a recreational property, the need to have your estate planning house in order is particularly important.
If you feel that you need to pro-actively deal with your will and estate planning matters in the immediate future, there are some key tips and cautions to consider for the protection of your financial interests.
Complete the whole estate planning package
A will deals with carrying out your wishes on your death. There are several other documents that you should also complete and have them reflect your current and ongoing wishes. Both these documents take effect during your life. One is an enduring or continuing power or attorney document. This means that the document is still valid, even if you become mentally incapable to revoke it. In this document you are giving the right to someone else to handle all your financial and legal affairs in the event you are incapacitated. You could have two people you designate, and/or have alternate attorneys. The word “attorney” does not mean lawyer. You could have tests built into the document as to what third party or type of third party, eg your family doctor or two doctors, deem you to be medically incapable before the authority takes effect. You could have other checks and balances built into the document.
Generally, a power of attorney is just effective in the province that you have property, although there are exceptions. If you have property in another province other than your primary province, or own property in the U.S., then you need legal advice about this issue.
If you are going to be out of the country for an extended time period and want to sell your vacation home while you are away, and list it for that purpose, you would do a different type of power of attorney. That one would be for a limited time and specific purpose, and detail exactly what authority the person has who you have designated to accept any offer, or sign closing documents on your behalf.
Another document is the health care proxy or representation agreement. There are different terms used in different provinces. The purpose is generally the same. This document gives authority to specific people to look after your health care needs if you are unable to do so. You have heard of “living wills”. This is a document that sets out your wishes to die a natural death, and not be kept alive by artificial means, if you have a terminal illness or condition.
Get Skilled Professional Advice
It cannot be overstated how critical it is to get competent professional advice. This means a lawyer who specializes in will and estate planning, and a qualified professional accountant who has tax expertise. You might also want to have a skilled and certified financial planner involved as well who has experience in estate planning, as well as an insurance expert. In all cases, you want the advice and planning to be integrated. You can ask any of these professionals for recommendations of others who could be part of your team of advisors, and why they would recommend them. Most initial consultations are without charge or obligation. You should therefore try to see at minimum of three advisors in each category, so that you have that comparative reference point and benchmark. It will also assist you in going through a rapid learning curve, and fine-tune your sense of the issues of importance to you in your customized context.
Don’t even think of doing your own will or power of attorney. In most cases, it will be the kiss of death in terms of the outcome. It is false economy to save a few pennies, when you can be almost guaranteed you will lose many pounds.
Have Sufficient Money to Pay Taxes
Poor estate planning could result in the estate being drained at death, reducing the amount of assets available to beneficiaries. Having sufficient life insurance is a major asset. Premiums for insurance to cover anticipated capital gains tax on your death, eg for a family cottage, could be paid for by the major beneficiaries of the asset. Life insurance proceeds are tax-free. There are numerous other second property tax strategies.
