Your savings, possessions and property form your estate. Estate planning allows you to decide in advance who receives what, and to establish a financial plan to minimize taxes upon your death. An important part of estate planning includes funeral and burial instructions and your wishes regarding medical interventions.
Estate planning is the best strategy to ensure your wishes are followed at the time of your death. Having an estate plan will streamline the process, possibly reduce legal costs, and ease the burden on your survivors.
In Canada there are no “estate taxes” – taxes owed on the entire value of an estate. However, your estate may be subject to probate and income taxes. Taxes and other expenses are paid out of your estate, reducing the amount available to pay to your heirs. All expenses must be paid prior to disbursing to the heirs.
Wills
A Will is a formal legal document detailing how you wish your assets and possessions to be distributed upon your death. It legally guarantees that your savings, individual items and property are given to people and organizations of your choosing. It also allows you to choose the person(s) who will care for your dependents and pets.
In preparing a Will you will decide who will act as executor of your estate. This can be one or more relatives or friends. Who you choose is important as he/she will be responsible for settling the estate and, once all expenses and taxes have been paid, distributing the balance of the estate to the beneficiaries in accordance with your wishes as outlined in the Will. It is sometimes wise to choose at least one younger person to act as executor of your estate to ensure that he/she will be alive when you pass away. Also, choose a person or people who live in Canada, because having a non-resident executor can create problems and additional tax burdens.
You can modify your Will at any time should circumstances change for you or for those mentioned in your will. A change in marital status, grown children, or death of a beneficiary or executor are good reasons to review and update your Will.
Dying without a Will leaves your possessions to be divided according to a pre-set formula according to province. Without a Will, your estate will be automatically transferred to your closest relatives, while friends, charities, and organizations will be excluded.
Having your Will prepared by a notary or lawyer is recommended. Once completed the document will be registered with the Chambre des Notaires and Barreau du Quebec or the law society of your province and becomes an official legal document. This ensures the document is indeed the last official Will and mistake-free and helps avoid delays and procedural costs – not to mention stress – that would be imposed on the executor(so) of your estate. It is important to provide details of your wishes when preparing your will. However, do not put in the specifics of your funeral or burial in the Will because in most cases, the Will is opened and read only after the funeral. Keep those instructions in a safe place and be sure to let the executor(s) know the location.
Keep all information regarding organ donation separate and make sure your close family and friends are aware of your wishes. Some detailed instructions regarding specific furniture or jewellery etc. can be written separately to the official will in what is known as a memorandum or codicil.
Probate
A Will is validated through a process called probate. The goal of submitting a Will to probate court is to ensure that the document is indeed the true Last Will and Testament and to confirm the executer and their ability to perform their duties.
The courts can resolve possible confusion between multiple documents and respond to any concerns regarding the legitimacy of a document (during Probate a Will can be challenged).
In Quebec, a notarial Will does not require probate.
Once the courts have accepted the Will and the appointment of the Executor, they will issue a document that officially appoints the executor as the estate administrator. It is important to be aware that once a Will has been probated it becomes a public legal document and can be viewed by anyone who applies for it at the probate courts.
What property can be transferred without probate?
In all provinces except Quebec, probate fees (sometimes called administration tax or probate tax) vary from province to province but are mostly calculated based on the total value of the “estate”. Consequently, it is important to understand what is considered part of your estate, and what is not.
Joint accounts with a right of survivorship, and financial accounts that already include beneficiary designations are not part of your estate (e.g. life insurance policies, registered savings accounts like RRSP’s or TFSA with named beneficiaries). Planning ahead can reduce probate fees.
Power of Attorney (POA)
A Power of Attorney document grants one or more people with the authority to make decisions for you regarding your bank accounts, payment of bills and other finances, property and other responsibilities in the event you are not available because of travel, hospitalization or other reasons. The terms of a Power of Attorney document are flexible. You set the conditions under which it begins and ends, and you can limit its authority to a specific asset or account.
A Power of Attorney will be completed by a lawyer or notary. Once completed, the document will be registered with the Chambre des Notaires/Barreau du Quebec or the law society of your province and becomes an official legal document. The Power of Attorney will provide you with peace of mind in the event of accident or other emergency where you are not able to take care of your day to day obligations.
Living Will (Mandate in Quebec)
A Living Will (in Quebec known as a Mandate) is a set of instructions that define your medical wishes should you become physically or mentally incapacitated. In Quebec, it also replaces the Power of Attorney, which loses its legal power. The document guides how medical professionals respond in the event you require medical interventions like life-support, tube feeding, or resuscitation. It can also include instructions regarding organ donation. You will designate a person(s) to ensure your wishes are followed or to make last minute decisions on your behalf.
This person can be one or more of the executors of your Will or other people that you choose. When possible, it is wise to choose a person or people who live nearby and would be close at hand. A Living Will (Mandate) will be completed by a lawyer or notary. Once completed, the document will be registered with the Chambre des Notaires/Barreau du Quebec or the law society of your province and becomes an official legal document.