Legal Questions

What do I do if I have been named an Executor/Executrix?

After the death of your spouse, a loved one or friend, you may find that you have been named as the Executor or Executrix. An Executor could also be a trusted friend or an advisor or even a trust company If the deceased did not have a Will or the Will did not name an Executor then the Surrogate or Probate Court will have to be approached and the court will appoint an appropriate person as the representative. This person is called the Administrator and fulfills the same role as the Executor.

Executors carry out the terms of the Will, pay any estate debts, and perhaps make funeral arrangements. Disposition of an estate is a provincial/territorial concern and each jurisdiction has basic rules outlining what the Executor must do. (Please see our links page for provincial government websites). Many properly drafted Wills will also lay out specific responsibilities or powers given to the Executor which actually makes the process simpler. Check the deceased’s Will to see the powers given to the Executor.

Executors are responsible for paying probate fees on the estate. These fees are essentially provincial/territorial death taxes applied to the value of the deceased’s assets. They are calculated based on a percentage; therefore the larger the estate, the higher the probate fees. Probate fees are theoretically intended to pay the costs the government incurs to settle a deceased’s affairs. These are a provincial concern and vary quite widely across the country.

For example, in Ontario the probate fees are 0.5% which is equal to $5 per $1,000 of estate value up to $50,000 and 1.5% which is equal to $15 per $1,000 of estate value over $50,000.
Therefore if an Ontario resident died with an estate value of $200,000 the probate fees would be:
$50,000/$1,000 X $5 = $250 plus,
($200,000 – $50,000)/$1,000 X $15 = $2,250 for a total of $2,500

Depending on the nature of the estate, you may want to call in outside professionals to assist in winding up the estate. These could include lawyers and accountants. If an estate is complicated this is certainly advisable.

Although many family members who are named Executors choose not to be paid, provincial law does allow for reasonable compensation for the Executor. If the Executor is paid, there are guidelines established but the court would have the final say on whether the compensation is appropriate. Any reasonable ongoing expenses incurred to wind up the estate would also be paid.

For a detailed checklist of the steps an Executor should take, please download this PDF, which is provided courtesy of Dedicated Financial Solutions and Manulife Securities.

What is a Living Will?

Also known as a Health Care Directive or a Personal Care Directive , a Living Will outlines your wishes about medical treatment in the event of a serious life-threatening injury or illness. A Living Will can be made with or without the assistance of a lawyer and is made legal once it is signed, dated and witnessed.

When creating a Living Will be sure to:

  • Discuss all your options with your family physician. They will be better able to advise you of what conditions would warrant the following of a living will.
  • Verbally tell your family and friends about the Living Will. This will help them when the time comes and they will remember you telling them about your wishes.
  • Decide who you want to speak on your behalf and get their permission.
  • Write your living will yourself or seek help from a lawyer.
  • Provide copies of your living will to your family members, lawyer, family physician and the person who will be acting on your behalf.

If a disease such as Alzheimer’s or Dementia , which impacts one’s mental ability, affects your parent, they may be unable to make decisions for themselves. Consequently, someone, usually a family member or members will have to take over that responsibility. This is done with a Power of Attorney (POA) .


What is a Power of Attorney?

A Power of Attorney is a legal document that allows a person to act on your behalf. They vary from province to province, for example, in Ontario there are 3 kinds:

  1. Continuing Power of Attorney for Property
    • This covers financial affairs and allows a person to name an individual to act for them – especially if they became mentally incapable.
  2. Non-Continuing Power of Attorney for Property
    • This covers your financial affairs but can’t be used if your parent becomes mentally incapable. Your parent might need this if you want someone to look after your financial affairs if you’re away from home for an extended period or if you own property with someone and want that person to handle the sale, especially if you’re away. It is only enforced for a specified time period.
  3. Power of Attorney for Personal Care
    • This POA allows you to appoint someone else to make your personal decisions, such as housing and health care, if you can’t communicate. It’s also called a health-care proxy and a Durable power of attorney for health care. Some issues that may be addressed would be: hospice care; change of physicians; the use of experimental treatments; nutrition; and the use of “heroic measures” to prolong life.

For more details use our links page to go to your provincial or territorial government website and search for Power of Attorney.

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