Talking about what you will leave behind when you die is not a comfortable conversation, but it’s important that everyone gives some thought to what they will leave behind. Wills and Estates lawyers have experience in drafting wills and other end-of-life arrangements, and Right Legal can connect you to the right lawyer to help you have these difficult conversations.
What is estate law?
Estate law concerns the sum of assets – such as cash, investment accounts, real property, and personal property – that an individual owns, and the distribution of those assets per their instructions on their death. An individual will generally indicate their wishes for property distribution through a Last Will and Testament (commonly referred to as just a “will”. A will can appoint another person – often a member of the deceased’s immediate family – as the “executor” of their estate, and the executor will be responsible for ensuring that the deceased’s wishes are carried out.
If an individual dies without a will, they are referred to as “intestate”. In these cases, the courts will appoint an executor, usually the deceased’s next of kin. The deceased’s estate will be divided among their surviving children, with a portion going to their surviving partner depending on the number of dependents who were also the children of the surviving partner.
In addition to drafting wills, estate law concerns other end-of-life arrangements such as a Power of Attorney, which is a document granting an individual the power to act for another when making financial and legal decisions. The Power of Attorney should be completed while the individual it affects is still of sound mind and body, but can be applied for on an individual’s behalf if they are still alive but no longer of sound mind. A Personal Directive is a similar, but governs arrangements for medical care and living arrangements. Someone else cannot apply for a personal directive for an individual.
What laws govern wills and estates in Canada?
Each province will have an Act relating to the drafting of wills and the distribution of a deceased’s estate, including what happens if they die intestate. In Alberta, this is the Wills and Succession Act; in Ontario, both the Estates Act and the Succession Law Reform Act govern estate planning and succession.
Additionally, provinces may have other statutes which affect the administration of wills and estates. For example, the Alberta Evidence Act requires that for any case in which the intent of a deceased individual to give a gift is being contested, witness testimony is required to corroborate the claim in question.
What sort of work would an estate lawyer be involved in?
Estate lawyers will first and foremost be involved in drafting wills, as well as other end-of-life arrangements. A lawyer doing estate work will almost always also be familiar with some areas of tax and business law, so that they can best advise clients on end-of-life planning to effectively convey their assets to their next of kin.
Points of Interest
There are three kinds of gifts: those given between living persons, those given in a will, and a third kind, the donatio mortis causa – a gift given in contemplation of death. The DMC serves the function of allowing an individual close to death to give a gift, as valid as it would be if it were in their will, without having to have their will amended; however, if the individual recovers from their life-threatening situation, the gift is invalidated, as the individual would then have time to amend their will.
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