Wills Lawyer

Michelle Kotzer

http://www.thewillslwayers.com

Michelle Kotzer

Call: Local:      905.881.1500 Ext. 22
Toll Free:        1.877.439.3999
or E-Mail         mkotzer@fishlaw.ca

WILLS AND POWER OF ATTORNEY
Frequently Asked Questions

 

Many people have called me with questions, and I would like to share some of these questions with you.

  • If I have a Will, why do I need to make a Power of Attorney for Property?
    It is important to realize that your Will only takes effect after you pass away. It has no relevance during your lifetime. Only a Power of Attorney for finances and property will protect you, in the event you are unable to manage your financial affairs due to accident or illness. The executor you name in your Will cannot help you, if you are ill and unable to manage your financial affairs. The executor’s role only takes effect once you pass away.
  • I do not like my son-in-law, I call him my son-out-law not my son-in-law. Under no circumstances do I want him to benefit from anything I leave my daughter. How do I accomplish this?
    In every Will I prepare, I include a clause often referred to as Family Law Clause. This clause protects the growth on any assets that you leave your daughter. Under Ontario law, the inheritance your leave your daughter is protected but not the growth on the inheritance, unless you include a Family Law Clause in your Will. Be sure to mention to your daughter that, if she takes what you leave her and uses in towards her matrimonial home or puts the money ina joint bank account with her husband, then the protection is lost.

  • I have a Will naming my brother as executor. Now that my son is in his twenties I want to appoint him as my executor. Can’t I just scratch off my brother’s name and write my son’s name in?
    I do not recommend scratching any part of your Will. It would be prudent to see a lawyer about drafting a Codicil to your Will. If it is a minor change such as the name of an executor, a Codicil would revoke the appointment of your brother and appoint your son as your executor. It would also preserve the other existing clauses in your Will. If you want to make major changes to your Will, it is recommended that you make a new Will rather than a Codicil.
  • My spouse and I cannot agree on whom to appoint as guardian for our minor children. Can’t we just leave this out of our Wills and let our families work it out after we pass?
    Appointing a guardian in your Will is an extremely important decision. If you do not appoint a guardian, you could have your parents fighting against your spouse’s parents over who is best to raise your children. This is not a good formula for family harmony.
  • I have a son who is collecting benefits from the Ontario Disability Support Program from the Ontario Government (ODSP). I want to leave him my estate. How does his collecting ODSP benefits impact my Will?
    If you leave your child your estate as an outright distribution, this will most likely mean that he will be cut off his ODSP benefits. Setting up a Henson Trust for your son in your Will will mean that you are protecting his ODSP benefits, after you pass away.
  • How often should a Will be reviewed?
    A Will should be a living breathing document. It should be reviewed on an ongoing basis to make sure it reflects your current life situation.If you are married, be aware that under Ontario Law, any Will you made before your marriage is revoked, subject to some technical exceptions.

    If you have separated since you made your Will, remember that under Ontario law, you are still considered married and if your Will refers to your spouse as the beneficiary of your estate, that spouse is the person you are separated from. He or she will inherit your estate according to your Will.

    If your previous Will made reference to your two children, but since that time you have two additional children, the additional children will not inherit from your Will. The same applies for grandchildren. If your Will leaves your son your house on Yonge Street but you have moved to a house on John Street, your son will not get that house on John Street.

    In my wills practice, I offer the public a free Will review. This means that you can make an appointment with me for me to look at your Will to see if it is up to date or a recipe for a family fight.I have found many problems in Wills that I have reviewed.

    Firstly, many of the Wills I have reviewed left assets that no longer exist or assets were left to people who have passed away with no back up beneficiary. I have reviewed Wills that were invalid because they were either not signed, not witnessed or signed and witnessed on different dates.

    Many of the Wills I have reviewed had no back up executor or back up beneficiaries in case the primary beneficiaries are not alive. If you are not sure if your Will is up to date, please feel free to give my office a call and set up an appointment for a free Will review.

  • We have been living common law. We have always avoided talking about Wills. It is a topic that makes us nervous. The last time we used a lawyer was to buy our house. What will happen to our estates, if one of us passes before we get the courage to call a lawyer and make a Will?
    Under Ontario Law, if a person living common law dies without a Will, his or her common law partner is not entitled to inherit. The partner will be able to make claims, such as for support but not get an inheritance.

    If you are a common law, in order to inherit each other’s estates, each of you must make a Will leaving your estates to each other if that is what you wish. In terms of dying without a Will, in Ontario, common law is not the same as marriage.If you are married and die without a Will, your spouse will get the first $200,000 and then splits the rest with the children. If there is one child the split will be 50/50 between the spouse and the child.

    If there is more than one child, the split will be one-third to the spouse and two-thirds to the children.

  • If I want to make a Will with you, what is involved?
    If you want to make a Will with me, generally there will be two appointments necessary. The first appointment will be for me to sit down with you, discuss your life situation, discuss your assets and draw up a Will plan for you. After the initial meeting, we will set up a time for the signing of your Will. At the signing appointment, I will go through the Will clause by clause with you.

    I will make sure that the Will reflects your wishes and that you understand each clause of the Will. If you have also made Powers of Attorney for Personal Care and Property, I will do the same clause by clause.If you are satisfied that the Will reflects your wishes, you will then sign the Will and/or Powers of Attorney in front of myself and my assistant. You will take the original Will home with you and I will keep a copy in a file in our office.

    If you do not have a Will and are not sure where to start, I offer a free Will consultation. You can make an appointment with my office and we can talk about a Will tailored to your particular life situation.

    My office is at 7951 Yonge Street, Markham, Ontario (Yonge below Hwy 7) in a turn of the Century Home. The atmosphere is relaxed and friendly. I understand that to many people the process of making a Will is intimidating. I also know that making a Will is one of the most important things a person can do to protect his or her family.During the free Will consultation, we can discuss your situation and I can offer some Will planning suggestions.

    If you want more information, you can check out my law firm’s website willappointment.com. You can see some of the articles that I have written and you can see some pictures from the inside of our law firm.If you wish to call me, I can be reached at 905-881-1500 Ext. 22 or email me at: mkotzer@fishlaw.ca

    You can also contact me on the online form of willappointment.com.