Frequently Asked Questions

Here at Kelly Law, we receive many questions. Before contacting us, check out our F.A.Q. section below.

Wills and Powers of Attorney

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Why do I need a Will?

A Will allows you to state who receives what, and when they receive it, following your death. You can leave specific assets to designated people. You can state that your house is not to be sold until your youngest child has finished school. You can leave jewelry to your daughter, or fishing gear to your son. You can prepare a memo, leaving items of personal property to certain individuals, and incorporate this into your will, as long as the memo is made and dated before the will is signed.
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What if I don't have a Will?

A government statute – the Succession Law Reform Act – dictates what happens to your estate. Without a Will, all of your assets might possibly be sold, and your beneficiaries, as determined by the government – not by you, will receive their inheritance in cash. Family members usually prefer some mementos or heirlooms instead of all cash. If you are married, and you die without a Will, your spouse does NOT necessarily inherit all of your assets. If your estate is worth less than seventy-five thousand dollars ($75,000.00), your spouse will receive everything. However, If your estate is worth substantially more, and if you have children or grandchildren, your spouse could inherit less than one-half of your estate.
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When Do Children Receive Their Inheritance?

Without a Will, a government employee may dictate which child receives your assets, regardless of how mature he or she might be. With a Will, you can decide at what age or ages your child will receive some or all of an inheritance. If you were to select the age of twenty-five (25) years, for example, you can also give your executor and trustee power to distribute some or all of the inheritance before that age if it is for a useful purpose such as education. As children grow older and mature (or don’t mature), you can change your Will and amend the age(s) and/or the percentage(s) of inheritance.

Powers of Attorney

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What is a Power of Attorney?

A Power of Attorney is NOT a Will. A Will speaks for you from the moment you die. A Power of Attorney for Property speaks for you from the moment you become mentally incapacitated, whether it be from sudden accident or illness, or from the moment you ask someone else to act for you. This person is your “attorney” and does not have to be a lawyer. The authority which you give to your attorney can be general, so that your attorney can do anything on you behalf, or the authority can be restricted, so that your attorney can do only what you specifically delegate.
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Do I Need A Power Of Attorney?

Yes. None of us likes to think about car accidents, Alzheimer’s disease or heart attacks, but these things occur. If you become mentally incapacitated, and do not have a Power of Attorney, a relative or friend will have to apply to the Public Guardian and Trustee and seek permission to act for you, that is, to be appointed your “statutory guardian”, a relative or friend will not be able to do your banking, or sell your house, or arrange mortgage financing, or do the myriad of other tasks because you are not competent and cannot sign your name. An application to be appointed your “statutory guardian” usually costs several thousand dollars. Your “statutory guardian may have to post a security bond and go through the costly process of filing a management plan on a regular basis and preparing annual financial statements. With a Power of Attorney, this extra cost and hassle are eliminated.
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Whom Should I Appoint?

Very often, you will appoint the same person whom you have names as your executor. However, you can appoint someone else and you can appoint more than one person. You should also appoint a substitute. As with your Will, the attorney should be responsible, trustworthy, mature and have good business acumen. You may worry that the attorney might use the authority granted against your wishes. For example, children might feel that a parent is no longer mentally competent and the parent might totally disagree. If this is a concern, appoint two attorneys who must act jointly, or leave your executed Power of Attorney with your solicitor, and give him/her specific instructions as to the circumstances under which it is to be released to your attorney. If you choose to do this, inform your solicitor. A Power of Attorney is not very effective if your attorney does not know it exists.
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Should I Review An Old Power of Attorney?

Yes, and for two reasons. Firstly, is the attorney you appointed still capable of acting for you should the need arise? Secondly, if the document was prepared prior to 1984, it probably does not include the following clause: “In accordance with the Powers of Attorney Act, I declare that this Power of Attorney may be exercised during any subsequent legal incapacity on my part.” If this clause is missing, the Power of Attorney is not valid if you should become mentally incompetent.

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