The three important documents in any estate plan

Introducing a new legal bi-weekly column by Wes Forgione, a lawyer and partner at Montgomery Miles and Stone, a law firm in Kelowna. His column will focus on his areas of practice, including estate planning, real estate, and corporate and commercial law.

Most people put estate planning off for extended periods because they think it’s going to be a head-ache, but this unresolved issue nags at them from time to time.

Clients advise me it nags at them while they are driving, while they are in the shower or while performing various errands during the day. People often report they are concerned their surviving family will be left with a mess, or not inherit as they would wish.

Estate planning is among my favourite areas of practice because I deliver peace of mind. I end the mental nagging. Some examples my clients report include:

1) Peace of mind spouses and kids will inherit as they would wish, rather than according to statutory law

2) Peace of mind their families will be able to care for them if they are incapacitated

3) Peace of mind young children will have guardians if their parents pass away

The first document in a complete estate plan is a will. A will is a legal document that is effective on death, and which allows you to name an executor, describe how you want your estate distributed and deals with ancillary issues such as guardianship for children and whether you want to be buried or cremated.

If you own a company and want to avoid probate and probate tax for your loved ones, you should have two wills, one for your shares and one for everything else. People often ask me if they should “do it themselves.” I invariably advise that they can through online websites, but I can’t guarantee the will will be valid when they die, or that it won’t cause problems when their lawyer attempts to obtain probate.

In my mind, individuals spend their entire lives building their wealth. As such, they should hire a professional to ensure that wealth is passed to their families without issue and as they wish

The second document in a complete estate plan is a power of attorney, which grants individual(s) authority over an adult’s financial affairs. Unlike a will, which only applies if you are dead, a power attorney applies while you are alive but may be incapacitated.

For example, if you were incapacitated, your spouse would have no authority to sell your home to put you into care or to access your bank accounts or investments unless they are held jointly. Once an individual is incapacitated, that person can no longer complete these documents, so it’s important not to put it off.

I have dealt with many problems where people waited and something happened, such as car accident, stroke or dementia, and the family was left scrambling to figure out how to deal with their loved one’s assets or pay bills.

The third document in a complete estate plan is a representation agreement, which grants individual(s) authority over an adult’s health decisions. Similar to a power of attorney, it only applies while you are alive and incapacitated. This document also contains a so-called “pull-the-plug provision,” which allows doctor’s to remove you from life support if you have no prospect of recovery. Otherwise, they must keep you alive in a vegetative state.

If you have any questions, please feel free to reach out to me at 250-980-3360, ext 398 or by email at [email protected].

The information provided in this article does not, and is not intended to, constitute legal advice; all information and content are for general information purposes only.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.