What's are "Standard" Wills and Powers of Attorney

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The following scenarios are commonly considered as "Standard" Wills and Powers of Attorney, popular among clients, and tend to prevent family conflict:

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A. Married Couple (first marriage) with Adult Children:

Will:

Upon your passing, everything goes to your spouse, if your spouse has already passed before you, then everything goes to the children in equal shares. The Trustee (ie the person overseeing your instructions in the will and handling the estate) is your spouse, if your spouse has already passed, it will be your adult children.  For multiple children, you may appoint them to act as Trustees "jointly" (ie together as a team) or you may rank them.

POA:

If you are unable to make decisions (ie due to mental incapacity), you would appoint your spouse as your decision maker, if your spouse has already passed or is unable to be your decision maker, you would appoint your children. For multiple children, you may appoint them to act as the decision maker "jointly" (ie together as a team), "jointly or severally" (ie together but between them they can work it out if only one is able to perform) or you may rank them. See my article on "jointly and severally")

B. Married Couple (first marriage) with Minor Children:

Will:

Upon your passing, everything goes to your spouse, if your spouse has already passed before you, then everything goes to the children in equal shares. You must appoint a Trustee to safely hold and handle the estate until your children reach the age of majority. You must also appoint a Guardian to care for them. Such Trustee and Guardian would often by a relative or close friend. For multiple Trustees, you may appoint them to act as Trustees "jointly" (ie together as a team) or you may rank them. Clients may or may not elect that the children's Guardian or Trustee receive compensation for acting in those roles.

POA:

If you are unable to make decisions (ie due to mental incapacity), you would appoint your spouse as your decision maker, if your spouse has already passed or is unable to be your decision maker, you would appoint a substitute decision maker (eg a relative or close friend). For multiple decision makers, you may appoint them to act as the decision makers "jointly" (ie together as a team), "jointly or severally" (ie together but between them they can work it out if only one is able to perform) or you may rank them. See my article on "jointly and severally"). Clients may or may not elect that the decision maker for all matters except personal care receive compensation for acting as decision maker.

C. Married Couple with Children from former marriages (ie blended families)

Will

This scenario differs from above scenario 'A' due to potential conflict of interest or the possibility that your spouse may prefer his/her own biological children over the decease's. Hence, to ensure that your own biological children will inherit: upon your passing, everything goes to your own biological children equally. However, the marital home goes to your biological children at a later date. First, you may give the "lifetime interest" or right to your spouse to occupy the marital home for rest of his/her lifetime, and upon your spouse's passing, your legal ownership portion of the marital home is divided equally among your biological children. (Conversely, you spouse's legal ownership portion of the marital home is divided equally among his/her biological children. The Trustee may be your adult children, relative, or close friend.

POA

If you are unable to make decisions (ie due to mental incapacity), you would appoint your spouse as your decision maker, if your spouse has already passed or is unable to be your decision maker, you would appoint your biological children, other relative, or close friend. For multiple decision makers, you may appoint them to act as the decision maker "jointly" (ie together as a team), "jointly or severally" (ie together but between them they can work it out if only one is able to perform) or you may rank them. See my article on "jointly and severally").

D. Single Individual with Surviving Children/Relatives

Will

Upon your passing, everything goes to your surviving family in equal shares. You would appoint children, relative, or close friend to act as Trustees.  For multiple Trustees, you may appoint them to act as Trustees "jointly" (ie together as a team) or you may rank them. Clients may or may not elect that the Trustee receive compensation for acting in such roles.

POA

If you are unable to make decisions (ie due to mental incapacity), you would appoint your childen, relative(s), or close friend(s) as your decision maker. For multiple decision makers, you may appoint them to act as the decision maker "jointly" (ie together as a team), "jointly or severally" (ie together but between them they can work it out if only one is able to perform) or you may rank them. See my article on "jointly and severally").

E. Individual who is Separated but not Divorced

If the divorce is not finalized and you don't have a will, your former partner may have a claim on your estate. Hence a common scenario is: upon your passing, everything goes to your children or surviving family.  You would appoint adult children or relative or close friend to act as Trustees. Clients may or may not elect that the Trustee receive compensation for acting in such roles.

POA

If you are unable to make decisions (ie due to mental incapacity), you would appoint your children, relative(s), or close friend(s) as your decision maker. For multiple decision makers, you may appoint them to act as the decision maker "jointly" (ie together as a team), "jointly or severally" (ie together but between them they can work it out if only one is able to perform) or you may rank them. See my article on "jointly and severally").

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Winnie J Luk, BA, JD, MBA, founder of Landmark Law, is a seasoned Ontario lawyer practicing in Wills and Estates, Real Estate, and Business Law and frequent speaker of free legal education seminar.
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