TPA Will and Powers of Attorney Program

The TPA Will and Powers of Attorney Program is designed to ensure all members have timely access to Legal Advice and will make it easier for members to put in place, or update an existing, Last Will and Testament and their Powers of Attorney.

5 Step Program:

To educate yourself, please read the Articles and FAQ section of this website.
Download the Templates - TO USE AS A GUIDE ONLY.
Call the Helpline at 1-800-246-6852 and get answers to any questions as well as a referral to a local lawyer.
Visit a Referral Lawyer to have the Will and/or Powers of Attorney prepared (in most cases the Lawyer will draft a custom Will that matches your personal situation) - NOTE that a 25% discount is available.
Revise or update your Will and/or Powers of Attorney if, and when, your personal situation changes.

If you have any Will and Estate related legal questions please call the Helpline at 1-800-246-6852.

Please note that when you call the Helpline you will be asked for some identifying information. Please provide your last name and badge or membership number.
This information is used for aggregate reporting purposes only. Your information is never included in the reporting as it is considered 'privileged' and protected as a client-attorney relationship.

If you have any questions, or comments, regarding the Will Program please call 1-877-942-2433.

The role of an executor

An executor is one of those people you will never need in your lifetime, but who will be extremely important to the family after death.
READ THE ARTICLE

A checklist for choosing an executor

Make sure the necessary tools are available to do the job well
READ THE ARTICLE

You can't take it with you

Every year, thousands of Canadians die without a will and the aftermath adds to the burden of the loved ones left to deal with the paperwork and bureaucracy.
READ THE ARTICLE

Why you should avoid naming an RRSP beneficiary in your will

My oldest son, Win, is determined to inherit everything I own, including my vintage Titan road-hockey stick. My daughter, Sarah, on the other hand, just wants my registered plan assets.
READ THE ARTICLE

Don't forget your RESP in your will

Most Canadians who have established RESPs have not given thought to what happens if they should pass away
READ THE ARTICLE

The family feud

Boomers are set to inherit a trillion dollars from their parents over the next decade. Plan your estate right and avoid a battle royale.
READ THE ARTICLE

Gail Posner’s millionaire dogs, and other cases of pets done good

In Canada, you can’t name your pet as your heir, but you can make sure they’re fed and watered
READ THE ARTICLE

Avoid the bickering over the inheritance

It's the rare family that hasn't bickered over money, property and possessions. But how can you avoid the squabbling?
READ THE ARTICLE

The power of a power of attorney

It’s a legal document that may stretch to only 1,100 words. Its execution takes no more than a couple of minutes and when the ink dries on the signature lines, this document usually gets slipped into a file folder, largely forgotten.

Despite its innocent beginnings, the document commonly known as a power of attorney only sleeps. And when someone starts digging for it years later, the enormity of the arrangement hits home.
READ THE ARTICLE

Living Wills: FAQs

An excellent article from CBC that includes information regarding Living Wills from across Canada.
READ THE ARTICLE

Program Related FAQs

What phone number do I call if I have questions about the TPA Will and Powers of Attorney Program?

For any questions, comments/feedback or suggestions related to the Program you should call 1-877-942-2433.

What phone number do I call if I have Legal questions or want to be referred to a Lawyer?

For any questions Will and Estate related Legal questions or to be referred to a Lawyer you should call 1-800-246-6852.

How does the program save me money?

By reading the Articles/FAQ sections and calling the Will Helpline you will have a better understanding of what is involved with a Will and therefore the appointment with the Referral Lawyer will be shorter – which will save you money if the Lawyer is billing based on time.

Additionally, there is a 25% discount on the Referral Lawyers fees – provided that the bill is paid within 30 days.

How many times am I allowed to call the Will Helpline?

As many times as you need to!

There are no restrictions with respect to the numbers of times you can call or questions that you can ask.

Who answers my questions when I call the Will Helpline?

The Will Helpline questions are answered by fully qualified Lawyers (not interns, students or Paralegals).

If I am going to go to a Referral Lawyer anyway should I bother reading the Articles/FAQ or calling the Helpline?

It can’t hurt! The articles and FAQ will inform you about Wills and therefore make the appointment with the Lawyer go more smoothly.

Are the Legal Documents provided in the Program sufficient? Do I need to visit a Referral Lawyer?

The Legal Documents are provided solely for informational purposes and should not be prepared without a lawyer's assistance. What you should keep in mind is that a person never really knows if their Will is going to be contested, or invalidated, until it is too late.

To ensure that your wishes regarding your Estate are followed it is strongly recommended that you visit with a Referral Lawyer – keep in mind that a 25% discount is provided in this Program.

I understand that I should visit a Referral Lawyer – but now is not good timing financially. What do you recommend?

If you need to you should read the Articles and FAQ sections and utilize the Helpline to fill out the provided Legal Documents as a short-term solution. This is preferred to not having, or having an outdated, Will or Powers of Attorney. You should plan to visit with a Referral Lawyer when finances permit to ensure that you avoid the numerous complications that may occur.

What are the benefits of visiting a Referral Lawyer?

Among the benefits of visiting with a Referral Lawyer are:

Ensuring that your wishes are properly documented and that you understand them
They will document whether joint assets are to be considered 'gifts' or 'loans' - see below
They will prepare an 'Affidavit of Execution' - see below - which can greatly reduce the probability of litigation
Provides you with the peace of mind that everything has been done properly

Wills and Estate FAQs
(Prepared by Murray Austin and Kenneth Vigeant)

What is Estate Planning?

“Estate Planning” is the planning that person does during life for what will happen to that person’s “estate” after he or she dies.

What is an “Estate”?

An estate is compromised of two things:

everything a person OWNS,and
everything that is OWED to that person

Put another way, one’s “assets” minus one’s “debts” equals one’s estate.

For example, Joe Schmoot dies.

When he died, Joe owned a home worth $200,000, furniture in the home worth $10,000, and other assorted belongings (example, pots, pans, dishes, CDs, DVDs, clothes, tools, books etc.) in total valued at an additional $5,000 (based on estimates of what they would sell for at an estate auction). He also had a bank account with a balance of $1,000. Altogether, the things he owned therefore were worth $226,000.

When Joe died, he also owed $100,000 towards the mortgage on his home and had other debts (heat, hydro, cable, internet, credit cards, a personal loan etc.) totaling another $26,000. Altogether therefore he owed $126,000.

Joe’s “estate” therefore when he died had a monetary value of $100,000, which is the net amount of the value of all that he owned (his “assets”) less the value of all that he owed (his “debts”).

Ex. $226,000 - $126,000 = $100,000

What is a “beneficiary”?

We wish to leave behind as much as possible to those whom we wish to benefit from our individual estates.

We want the people we leave our estates to “benefit from” what we leave behind – hence the term “beneficiary” in so many estate planning strategies.

What are some examples of “estate planning strategies”?

“Estate planning strategies” include a wide array of things (sometimes called estate planning “tools” or “vehicles”) wherein we can designate a beneficiary other than ourselves.

Such tools in the estate planner’s “tool box” include (but are in no way limited to) RRSPs, company pension plans, government benefits (such as Canada Pension Plan survivor’s benefit), and life insurance policies.

What is “joint ownership”?

“Joint ownership” is another common estate planning tool whereby the ownership of the property (example one’s home), is set up such that it is “jointly owned” (example between a husband and wife, or father and son, or as amongst siblings).

How can “joint ownership” be used as an estate planning tool?

Upon the death of any person holding property in joint ownership, that person’s legal interest (i.e. ownership interest) automatically goes to the surviving (i.e. still living) “joint owners” of the property.

Therefore such a transfer of property need not be done via a will – which in turn avoids court fees (often called “probate fees”) associated with arranging such transfers of property through a will. Due to recent court rulings, you should document, either in the Will or elsewhere, whether the joint assets are a 'gift' or a 'loan'. The Will Helpline, or a Referral Lawyer, can explain this important difference to you.

What is a “trust”?

A “trust” is another common estate planning tool. One establishes a “trust” through which money from someone’s estate could be placed “in trust” for use by a designated beneficiary. The beneficiary’s use of such money (often incrementally over time) is tied by the “terms of trust” to very specific conditions – such as, for example, that the beneficiary of the trust obtain a university degree by the time he or she is 30 years of age as a condition of getting the money held in trust.

What is a “will”?

A will is far and away the most common estate planning tool.

A will is just that – a written statement of one’s desire, intention, and wish – i.e., of that person’s will as to what is to happen with his or her estate when he or she dies.

What happens when you get a will?

In one’s will, a person (“the testator”) appoints a person (“the executor”) to carry out the testator’s wishes as set out in the will.

The most important of these wishes will be how the testator wants his/her “estate” to be distributed amongst his/her “beneficiaries” (“the distribution clause”).

What is a “testator”?

The will maker is called the “testator” because he/she is “testifying” in the will as to what they want to happen with their estate when they die.

What does a will need to be considered valid?

The legal requirements for valid wills include that they must be in writing, signed by at least two witnesses – and that they can be provable as being the “last will and testament” of the testator (will maker).

That the testator be “of sound mind” when making the will is also a requirement for a valid will. In this regard, it is a good idea that one of the witnesses to the signing of the will be a lawyer (which is another good reason to retain a lawyer to draft your will for you – they usually also serve as a witness to your will). Lawyers are also trained to ask certain questions of the testator at the time the will is signed with a view to ascertain that person’s “soundness of mind.”

Another benefit of visiting a Referral Lawyer is that they will prepare an 'Affidavit of Execution' that will confirm that you were "of sound mind" and understood what you were signing. This would prove to be invaluable in the event that someone questions the validity of your Will or Powers of Attorney.

What happens if I die without a will?

If one dies without a will – or at least without a valid will – that person is said to have died “intestate.” This means he/she did NOT “testify” via a valid will as to their wishes about the distribution of their estate.

In such situations, that person’s estate is subject to a division amongst beneficiaries as determined by the government – i.e., as prescribed in legislation in Ontario called “The Succession Law Reform Act.”

That Act sets out a scheme of distribution commencing with payment of debts of the estate, followed by the distribution of whatever is left over in the estate amongst relatives starting with surviving spouses up to a certain amount (the first $200,000 value of the estate), then surviving children, then grandchildren, and continuing on through an ever widening circle of more distant relatives until the residue of the estate has been fully distributed. If no such beneficiaries can be found, the residue in the estate will eventually “Escheat to the Crown” – i.e., go to the government!

What is “estate residue”?

“Estate residue” is whatever remains following the payments of debts and specific bequests.

What is a “Power of Attorney” (“POA”)?

A “Power of Attorney” is another very common estate tool. A “POA” is a legal document wherein a person designates someone else as their representative to make certain decisions on their behalf. The person designated is said to have “power of attorney” over the affairs of the POA maker, as set out on the POA.

Although such “substitute decision makers” are called “attorneys” in the POA, they need not be actual attorneys (i.e., lawyers). Indeed in most POAs, the designated substitute decision maker is not a lawyer, but rather a close and trusted family member or friend of the person granting the power of attorney.

Are there different types of Powers of Attorney?

Yes.

The two main types of POAs in Ontario are “Power of Attorney for Property” and “Power of Attorney for Personal Care.”

A POA for Property deals with financial decisions that would otherwise be made by the person signing the POA (the “POA maker”).

A POA for Personal Care deals primarily with health care decisions. Often, for the sake of consistency and simplicity, the attorney (or sometimes “joint attorneys”) named in a person’s POA for Property are the same as in a POA for Personal Care.

While POAs for Personal Care only have legal effect at a point wherein the POA maker is mentally (or physically) incapable of expressing their wishes regarding their own health care decisions, a POA for Property can be set up such that it takes effect whenever the POA maker wishes it to take effect – including even while that person may have the full mental capacity to make their own financial decisions.

For instance, a person may live in Florida for six month of the year, but need someone to look after their estate back in Ontario while they are in Florida. The more traditional use of POAs for Property is being able to deal with a person’s finances when that person may become mentally incapacitated.

In view of the legal requirements for a valid POA, it is strongly recommended that anyone considering such an estate planning tool consult a lawyer. Usually any lawyer that does wills, also does POAs – and often will provide these estate planning tools (a will, a POA for Property and a POA for Personal Care) as part of a single “estate planning” package.

Other than a lawyer, are there other professionals who can help me with my estate plan?

While lawyers with the expertise in legalities of the various estate planning tools can be a great assistance in the estate planning process, it should also be noted that other professionals with different types of expertise – such as financial investment experts and tax accountants, may also be of great assistance in one’s overall estate plan.

The following Legal Documents are provided for informational purposes only. They are intended to help you prepare for a meeting with a Referral Lawyer and understand what will be discussed.

Last Will and Testament
Power of Attorney for Property
Power of Attorney for Personal Care (Living Will)

The template requires Adobe Acrobat Reader which you can download for free here

Please download the TPA Legal Document Template

As part of the TPA Newsletters you can submit a question to be answered by one of our Experts. We will not identify you, or your situation, without your prior consent and you may remain anonymous.

The question selected for publication in the TPA Newsletter will be the one that is applicable to the largest number of TPA members.

The Expert that will be answering the questions will be Murray Austin.

Murray Austin, Barrister and Solicitor - Biography

Mr. Austin was called to the bar in 1987. He practiced for many years in Brampton, Ontario before moving to London. In the past, Mr. Austin has taught at the University level and was the Executive Director of the Community Legal Services Clinic at the University of Western Ontario. Prior to his recent return to private practice Mr. Austin also served as Executive Director of the Huron/Perth Community Legal Clinic. In addition, Mr. Austin currently teaches at the College level in the Law Society of Upper Canada accredited paralegal studies program and works with Legal Assistance programs.

Please send your questions here