WHAT IS A WILL?
WHY SHOULD I HAVE A WILL?
A Will is a legal document that sets out how both your real and personal property (your “Estate”) will be distributed after your death. Your Will directs who gets your Estate, in what proportion, and who is to be the Executor or Executrix. The Executor/trix is the person you name in your Will to carry out your written directions and distribute your Estate to your beneficiaries.
WHO SHOULD MAKE A WILL?
Any person of sound mind, that is competent to sign legal documents, who has real estate or personal property, should consider having a Will drafted. If you are living in a common-law relationship or engaged to be married you should have a Will prepared that contemplates these changes in your life so that your wishes continue to be valid upon the happening of future events. You should also review your existing Will to ensure it continues to reflect your wishes given your current circumstances.
WHY SHOULD I HAVE A WILL?
A Will gives you peace of mind knowing that your affairs will be taken care of according to your directions after you die. In your Will, you can leave money or assets to your family and/or any other individuals or organizations you feel should benefit from your Estate.
In your Will you can also create Trusts. A Trust is a legal mechanism to pay out your Estate over time and can be organized to provide for people dependant on you such as young children or adults with disabilities. The trust will state who will manage your Estate, when payment can or will be made and how to pay out your Estate when the Trust is finished.
Your Will can also state who you wish to be the guardian of your children while they are still minors.
WHAT HAPPENS IF I DO NOT MAKE A WILL?
If you die without a Will you are said to die intestate. If this happens, the Provincial Law will say how your Estate is to be paid out and to whom. Under current Manitoba Law, your Estate goes to your spouse or common-law partner and maybe children, depending upon your family circumstances. A lawyer will be able to tell you how your Estate will be distributed if you do not have a Will. If you do not have a spouse, common-law partner or children, the Law, that is The Intestate Succession Act of Manitoba, states which relatives would share in your Estate. If you have no surviving relatives as set out in this Act, your Estate will go to the Province of Manitoba.
A Will allows you to direct to whom and in what proportion you want your Estate to go, family, an unrelated person such as a close friend or to one or more charities.
Without a Will you cannot appoint an Executor/trix. In this case, a Judge decides who is to administer your Estate and the Law sets out whether this person must post a bond as security.
CAN I CHANGE MY WILL?
You may change your Will at any time and as often as you wish. However, informal changes made to a formal Will are not effective. You must either make a new Will or have a Codicil prepared. A Codicil is a formal amendment to your Will. You should review and update your Will from time to time because changes in your life and the type of property you own can affect how you want your Estate distributed. Any one of the following events should prompt you to review your Will:
- separation or divorce;
- common-law relationship;
- the birth of a child or when a child becomes an adult;
- substantial change in your financial circumstances; or
- the death of a beneficiary, Executor/trix.
For example, getting married cancels your Will unless there is very specific wording in your Will that says this Will was made in contemplation of this marriage.
CAN I USE A WILL KIT?
You may use a Will kit to make your Will and such a document is sufficient if correctly prepared. However, as with many legal documents, the validity of a Will prepared without the aid of a lawyer may result in the document being improperly signed and/or witnessed. If a Will is improperly drafted, it may result in unnecessary and expensive legal fees to be paid out of your Estate in order for your Executor/trix to apply to the Court for direction as how to interpret your Will. A lawyer does more than just draft a Will for you, they give you legal advice and make sure your legal documents are properly drafted, that they comply with your wishes and the Law.
By giving you advice on your specific circumstances, the lawyer can assist in your Estate planning to help minimize expenses to your Estate while at the same time assisting you in determining the best way to achieve your goal of providing for your loved ones and giving to charities.
WHAT IS A POWER OF ATTORNEY?
WHY SHOULD I HAVE A POWER OF ATTORNEY?
A Power of Attorney is a legal document that allows you to appoint another person (your “Attorney”) to act on your behalf. An Attorney is able to deal with third parties, in your place, on all financial and business matters that you designate in your Power of Attorney. The powers you give to your Attorney can be very broad, allowing your Attorney to look after all your personal and business matters, or be very specific, such as running your business for a specified period of time while you are away on a holiday or while you are hospitalized.
Typically, a Power of Attorney is broad in what it covers as you expect it to be used by the Attorney when you are unable to look after matters on your own.
WHEN DOES THE POWER OF ATTORNEY START?
This depends on the type of Power of Attorney you choose. A General Power of Attorney is effective as soon as you sign it. A Springing Power of Attorney becomes effective upon a certain condition happening in the future, such as being declared mentally incompetent by one or more doctors.
WHO CAN MAKE A POWER OF ATTORNEY?
Any person who is mentally capable of understanding the legal effect of a Power of Attorney can make one. The Attorney you appoint must be a mentally competent adult but cannot be an undischarged bankrupt. It is important that you carefully consider who you want to appoint as your Attorney, as that person will have access to your bank accounts and all of your personal information.
WHEN DOES A POWER OF ATTORNEY END?
Your Power of Attorney can be terminated by you destroying all of the original signed copies and notifying everyone with whom your Attorney had dealt with under your Power of Attorney. It can be terminated by a Court Order or, if you do not have an Enduring Power of Attorney, your Power of Attorney will end when you become mentally incompetent.
A Power of Attorney ends upon your death. At that time, your Will takes over and your Executor becomes responsible. A lawyer will provide the advice you require to ensure your Power of Attorney best suits your needs.
WHAT IS A HEALTH CARE DIRECTIVE?
A Health Care Directive, or Living Will, is a legal document that allows you to express your wishes, in written form, regarding what type of medical treatment you wish to have, or, what medical treatment you do not want, in the event that, due to an illness or accident, you are unable to communicate your wishes or decisions.
A Health Care Directive can be found at: https://www.gov.mb.ca/health/documents/hcd.pdf
HOW CAN I FORSEE EVERY POSSIBLE FUTURE EVENT?
You may not be able to foresee all future medical issues that may come up, and be struggling with attempting to express your future medical directions in writing. A solution to this dilemma is to name one or more individuals (a “Proxy”) to make decisions on your behalf.
WHO CAN SIGN A HEALTH CARE DIRECTIVE?
Generally, any person sixteen (16) years of age or older has the capacity to make medical decisions. In order to sign a Health Care Directive, you need to be capable of making medical decisions and understand the consequences of those medical decisions.
WHEN DOES THE HEALTH CARE DIRECTIVE BECOME EFFECTIVE?
A Health Care Directive becomes effective when you no longer have the ability to make or communicate your medical decisions. If you resume the ability to make your own health care decisions and this capability is confirmed, then your Health Care Directive will become inactive.
Your Health Care Directive can be cancelled by making a new Directive or, if you are mentally competent, by destroying all signed copies of your existing Directive.
WHO CAN YOU NAME AS YOUR PROXY?
Your Proxy must be a mentally competent adult. You can appoint more than one person to act as your Proxy. A situation where you would benefit from having two Proxies would be where your first named Proxy is your spouse but he/she is injured in the same accident as you and is unable to act on your behalf.
For more information about a Will, Power of Attorney or Health Care Directive, please call our office at 204-239-8710.