Willy Wonky

June 22, 2022 3:13 AM

Canadian Law Filter - I do not understand wills. Can you please help me understand wills?

We live in Ontario, Canada. My common law Partner and I share a 6 year old child, and a $400,000 mortgage on a house. We own a car worth $10K. He has $30K in student debt.

If we both die at the same time, we would like a dear Friend to take our child, and take all of our assets, and use them to raise our child. We have life insurance, and our house would be a decent source of rental income. Conveniently, Friend has property management experience.

Friend has a mortgage of their own, and some debt. Also a common law partner, and 2 children from a previous relationship. Friend makes an inconsistent income.

We know our values are aligned, and we trust Friend 100% to deeply love our child, use the money in ethical ways, and raise the child well. There's nobody else we would ever choose to raise our child if we couldn't do it.

So - what do we need to do to make this legal? I called a lawyer that does wills, and they talked about making 1 or 2 Wills, and 1, 2, or 4 Powers of Attorney, for Personal Care and / or Property (1 for the couple, or 1 of each for the couple, or 2 each).

I don't know what any of that means, or what we should do.  Could you explain it in very simple terms, please? I know it's important to do this, but it makes me feel nervous and intimidated. I appreciate any advice.

posted by anonymous to Law & Government (6 answers total)

First off, this is exactly the type of stuff your lawyer should be helping you with. So if the lawyer you spoke to couldn't explain these things in a way that was helpful for you, then they're probably not the right lawyer for you and you should consider talking to someone else.

(Also read the rest with the disclaimer that I'm American and have only done a little bit of research on this stuff, so I'm familiar with the general terms, but probably not aware of the subtleties of how this might be different in Canadian law)

The first choice you have is between a joint will (one document which covers both of you) or separate wills. These days, joint wills are discouraged, because they can only be changed with the consent of both parties, which can lead to sticky situations if you divorce, or one of you dies before the other. (For example, if your partner died, and then you had a falling out with your friends, you might be unable to change the will to direct your assets to someone who still had your trust.) Instead, "mirror wills" where each partner has a will with identical terms are generally recommended these days.

A Power of Attorney is a document granting someone else the right to legally act on your behalf in certain matters or under certain circumstances. For example, a Power of Attorney might give your partner the right to direct your medical care in the event that you are incapacitated. This is where the Canadian-specific stuff really starts to matter, and my lack of knowledge starts to show. What sorts of PoAs you might want and how they will interact with your common-law partnership is exactly the sort of thing that a good Canadian lawyer ought to be able to explain to you.

Also, good for you for doing this. It can be a hard and stressful process, not least because it requires you to consider what you would want to do in a whole host of terrifying situations. But not considering those situations will make things much harder for those left behind to deal with them if they should occur. Good on you for doing the hard work of making their lives a lot easier.
posted by firechicago at 4:42 AM on June 22, 2022 [3 favorites]

Seconding firechicago - and since talking to a lawyer is expensive I would also really recommend you read a basic book about wills and estate planning to give you the basics. One that I found useful at a very high level (and admittedly in a US context) is What Matters Most: The Get Your Shit Together Guide to Wills, Money, Insurance, and Life’s ‘What-ifs’. Amazon is loaded with "Simple Guides to Canadian Estate Planning" but I don't know if any of them are particularly good. Your local library probably has loads (my husband and I made wills using a library book; I didn't end up having to use his will when he died because all of our assets were held in common/in payable on death accounts, but as far as I know it was a perfectly OK will!).

I know all this stuff is scary and confusing but one important thing to keep in mind is that you ALREADY have an estate plan, it's called intestacy and it means that provincial laws and courts decide what happens to your assets and child in the case of your death(s). This is probably not the plan you want! So even if you don't get everything exactly right, having a will written by an actual lawyer will make it at least a little bit easier to get the results that you want.
posted by mskyle at 4:51 AM on June 22, 2022

You should keep talking to lawyers until you are confident that you understand what steps you should take. Lawyers will usually give you an initial consult for free, and in that consult they should be able to respond to your questions and describe what documents you need to create and what they should say.

A few years ago I had to help a relative with their will in Massachusetts, USA. There was one issue they were dealing with that Massachusetts law handles in an unexpected way. I had to talk to three lawyers before I got the correct information and understood it well enough to help my relative do what they wanted. I am very glad I took the time to do that.

Good luck. To reiterate: find attorneys who specialize in Canadian wills & estates. Get initial consults. Read up online. Find a lawyer who can explain things to you in a way you understand, and who you are confident has the correct information. Then move forward.
posted by Winnie the Proust at 6:13 AM on June 22, 2022

You're likely looking at two separate PoAs per individual: a medical one and a financial/property one. You want individual ones as you and your spouse may have different ideas about what steps should be taken if you are medically incapacitated. Even if your thoughts are identical, it is always best to have individual documents to simplify things (both the changing of said papers at some point in the future and the use them to execute actions in the case they are needed).

Absolutely find a different lawyer if this one has left you confused.

If you contact the mods to include where you are in Ontario, people may have some personal suggestions for you.
posted by sardonyx at 6:52 AM on June 22, 2022 [1 favorite]

I live in Ontario and have gone through the process of making a will and powers of attorney while being in a common-law relationship.

You should have separate wills that spell out what will happen should one of you die and if both of you die. Under Ontario law, common law relationships do not include property rights. You will also need to name an executor.

The powers of attorney/health care directive are to cover the case where one of you becomes temporarily or permanently unable to make your own health care or financial decisions. Under Ontario law, next-of-kin is not automatically your common-law partner.

(my partner and I have since got married and that simplifies a lot of things)
posted by TORunner at 6:55 AM on June 22, 2022 [1 favorite]

This is a US-centric answer, but I would consider having your assets put into a trust for the benefit of your child, rather than bequeathing those assets to your friend. The friend (or a bank or attorney) could manage the trust while the child is a minor, and any remaining assets could be transferred to your child when they reach majority age or another age (e.g. 25 or 30 years old) which you determine and outline in the trust.
posted by Sweetie Darling at 4:30 PM on June 22, 2022