Pinsky Law advises and represent Whitby clients in the complete range of legal services related to estate planning, estate administration, and estate litigation. We ensure that our Whitby clients’ legal and family interests are protected and the clients' goals are achieved. The Firm Whitby clients include individuals, business owners and their families, trust companies, government agencies, and charitable and not-for profit organizations. Pinsky Law long involvement with the entrepreneurial community makes us especially suited to advise Whitby family business owners on succession planning. Our work encompasses simple arrangements to complex tax planned will, trust and corporate structures to meet the most sophisticated needs.
Last Will and Testament
A Will is a written document in which you (the "Testator") appoint someone to administer your estate (the "Estate Trustee") and set out how you want your estate distributed. It only takes effect upon the Testator death. Reasons for executing a Will include:
- Address the Testator's personal wishes;
- Avoiding increased costs related to not having a Will;
- To achieve the Testator's estate planning objectives;
- Providing for the distribution of the Testator's property;
- Establishing trusts for tax reasons or other reasons;
- Appointing a guardian for the Testator's children;
- Protecting the Testator's loved ones.
The Testator must be at least 18, subject to certain exceptions, and have proper mental capacity to execute a Will. A holographic Will is a Will that is entirely in the Testator's handwriting. It is valid and recognized under the law as long as certain requirements are met. However, it is not recommended due to the significant risk that the Testator's wishes will not be achieved. If a person dies without having executed a Will, they are said to have died intestate. Administration of the estate is then governed by Part II of the Succession Law Reform Act.
If you are interested in retaining our firm to draft your Will, please contact us to arrange an the initial consultation. In order to properly discuss the legal issues during the consultation and to draft documents on your behalf, we require the following information:
- A list of the Testator's assets and liabilities, current values and form of ownership (i.e. sole, joint with right of survivorship);
- Details of any existing beneficiary designations on the Testator's life insurance, TFSA's, RESP's, RRSP's, or RRIF's;
- Testator's marital status and family situation (i.e. children, previous divorce or separation obligations); this is to properly advise the Testator of potential claims against Testator's estate in the event the Testator fails to adequately provide for spouse or children as they can bring claims against the Testator's estate and potentially override the provisions in the Testator's Will;
- The Testator's full legal names and mailing address;
- The full legal name of the person the Testator wants to appoint as Estate Trustee and his or her relationship to the Testator (i.e. spouse, sister, friend, etc.). Please consider a primary Estate Trustee and an alternate in the event the first person is unable or unwilling to act; It is also possible to appoint two or more people to act jointly;
- The full legal names of the Testator's beneficiaries and their ages; if under age of majority (18), the inheritance will be held in trust until they attain age 18 or such later age that you specify. If this situation applies, we can further discuss terms of the trust.
- Whether any of the Testator's beneficiaries are currently incapable or receive ODSP benefits;
- The Testator's instructions as to what or how much he or she wants each beneficiary to inherit;
- The Testator's personal effects and/or family heirlooms that the Testator wants to bequest to one person specifically or how the Testator wants these items to be distributed;
- The Testator's funeral or burial instructions;
- The testator's as to whether body organs to be made available for transplant or research purposes; and whetehr the Testator wants the Estate Trustee to be entitled to receive compensation for them.
An Estate Trustee is the individual appointed to administer the Estate. The role is an onerous one that requires time, commitment, honesty and sound judgement. The Estate Trustee has many obligations including funeral arrangements, determination of assets and liabilities, securing and protecting the assets, tax filing, acquiring legal representation, obtaining a Certificate of Appointment of Estate Trustee if necessary, advertising for creditors, payment of debts, maintaining or closing accounts, gathering in and distributing assets, and various other matters. Some people who have complex estates may choose to appoint a trust company as the Estate Trustee in order to take advantage of multiple resources or avoid family conflicts. Some people may also choose to appoint more than one Estate Trustee to act jointly. The Estate Trustee is exposed to personal liability for failure to administer the estate properly. We recommend you appoint someone with the ability to handle this position and ask that person beforehand to ensure they are willing to take on this important role.
A trust is a legal arrangement created by an individual (the "Settlor") giving fiduciary control of property to a person (trustee) who then has an obligation to manage the property on the Settlor's behalf. Trusts established during the lifetime of the Settlor are called inter vivos trusts. Trusts established pursuant to the Will are called testamentary trusts.
Power of Attorney
A power of attorney is a legal document by way of which you (the "Grantor") appoint another individual (the "Attorney") to act on your behalf. The nature of the Power of Attorney and the terms contained therein dictate when the Attorney's power takes effect and the authority that individual has. Powers of Attorney are only in effect during the Grantor's lifetime and cease to have any effect upon death. In Ontario, Powers of Attorney are governed by the Substitute Decisions Act, 1992. We recommend you appoint someone with the ability to handle this position and ask that person beforehand to ensure they are willing to take on this important role.
Power of Attorney for Property Management
This type of Power of Attorney permits the Attorney to make decisions regarding some or all of the grantor's financial and legal affairs, except make a Will.
Power of Attorney for Personal Care
This type of Power of Attorney permits the Attorney to make decisions on your behalf relating to food, clothing, shelter, hygiene, nutrition, medical treatment and procedures. It is only effective when you are no longer able to make your own decisions regarding your personal care. If you are interested in retaining our firm to draft your Powers of Attorney, please contact us to arrange the initial consultation. In order to properly advise you and draft documents on your behalf, we require the following information:
- Full legal name of the person you want to be appointed as your Attorney under Power of Attorney for Personal Care; and
- Full legal name of the person you want to be appointed as your
Attorney under Power of Attorney for Property Management.