WILL AND POWERS OF ATTORNEY PACKET

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INDEX

ABOUT THIS PACKET

WILL AND POWER OF ATTORNEY

Reasons for Making a Will
Continuing Powers of Attorney for Property
Powers of Attorney for Personal Care
Estate Planning for the Average Canadian
Will, Power of Attorney and Estate Definitions

WILL AND POWER OF ATTORNEY QUESTIONNAIRES

ABOUT LAWRENCE S. PASCOE

APPENDIX

WILL AND POWERS OF ATTORNEY PACKET

Enclosed are five articles I have written entitled Reasons for Making a Will, Continuing Powers of Attorney for Property, Personal Care Powers of Attorney, Estate Planning for the Average Canadian and Will, Powers of Attorney and Estate Definitions. These articles are not substitutes for legal advice but are for general information. It is advisable that you read these articles prior to your appointment with me. I would ask you to complete the Will and Powers of Attorney Asset Information form and Will Questionnaire form before your consultation. This form also serves as a record that may help your executor in administering your estate. Of course, all information regarding your assets is strictly confidential.

My Powers of Attorney reflect the current law. The Ontario Government has legislated law that allows for a Power of Attorney for Personal Care which may have a provision more commonly known as a Living Will. Enclosed are my Continuing Power of Attorney for Property Questionnaire and my Personal Care Power of Attorney Questionnaire. You should complete them as best you can. I will finalize them at your consultation or over the telephone if you are just signing Powers of Attorney and not Wills.

Enclosed is my Fee Schedule and a Procedure Memorandum. I am enclosing my Resume and My Service Principles - The Pascoe Difference so that you have a better idea of who I am and my experience. I have been practising since 1977. I restrict my practice to the areas of law commonly used by the average person - Wills and Estates and Family Law. I try to be unique, innovative and client oriented. This packet is an illustration of all three of those qualities, as is my Will and Powers of Attorney Manual which has other articles, memos and checklists. The Will Manual is explained in greater detail in my Procedure Memorandum. I have hole punched this packet, as the articles should be placed in the Will and Power of Attorney Manual.

I have a web site at www.thepascoedifference.com where this packet and other articles may be found. My email mail address is lspascoe@thepascoedifference.com.

I encourage my clients to give me their opinions. I have therefore initiated a Client Survey Contest, which is enclosed, to obtain more client feedback. Even if you do not become a client, I invite you to complete the Will Packet Survey and Choosing a Lawyer Survey and enter the contest. If I can be of further assistance please call me or my staff for an appointment.

My experience is that many people put off making Wills and Powers of Attorney. I believe that this is a mistake. Having updated Wills and Powers of Attorney will give you "peace of mind" knowing that your personal affairs are in order for you and your family's benefit.

LAWRENCE S. PASCOE

REASONS FOR MAKING A WILL

A will allows one to decide upon one’s death "who" gets "what assets", "when", and "who" looks after the estate and any trusts. A will may also allow one to state his or her preference as to who should have custody of one’s child, though it is not binding on the Court. One may also express his or her wish as to how he or she wishes to be buried, but this is not binding upon the executor.

Without a will, all of those decisions are governed by Ontario's Succession Law Reform Act. The main reason for having a will is therefore to allow one to make these decisions rather than letting the government's statute dictate them. Moreover, without a will there may also be administrative problems, extra expenses and possible lawsuits by dependents or spouses who did not inherit as much of the estate as they would have under the dependant relief provisions of the Succession Law Reform Act or on equalization of assets claimed under the Family Law Act.

Often what the Succession Law Reform Act dictates is not what you would have wanted or what is best for the estate and the beneficiaries (persons who inherit the estate). This article will explore briefly the main decisions that are expressed in a will, what decisions are made by the Succession Law Reform Act in the absence of a will, and why the latter decisions may not be the best in many circumstances.

BENEFICIARIES: The Succession Law Reform Act Part II states who gets what portion of the estate if there is no will. Contrary to popular belief, it does not all necessarily go to one's spouse. When there are children involved, the spouse receives the first $200,000.00 and the remainder is divided among the spouse and the children in proportions that depend on the number of children. If one dies without a spouse and without children or grandchildren, the parents are the beneficiaries. In this latter instance, which might occur because of an accident involving the whole family, one’s wishes should be expressed in a will as most often a person desires that other relatives, such as brothers and sisters become the beneficiaries as well as the parents.

SPECIFIC ASSETS: If one dies without a will, the assets are usually all sold and the beneficiaries obtain their share of the estate in cash. A will allows one to designate specific assets to certain people.

CHILDREN: It is in the case of child beneficiaries that a will is most necessary. Without a will naming a trustee to look after the children's money until they are a certain age, the Official Guardian's office in Toronto becomes the trustee. The Official Guardian as trustee must give the children their share outright at age eighteen. Some people do not feel that a child is sufficiently responsible at age 18 to manage a large amount of money (and with today's death benefits and insurance policies, it could be a large sum). By having a will, a parent can decide at what age the child can take control of his or her bequest such as at age 21, 23, 25 or even 30. Until that time, the trustee of a will still has flexibility to give the child capital from his bequest if he or she really needs it. The Official Guardian is a bureaucrat who does not have as much time to monitor personally the needs of the child and therefore there may be a time lag between requesting money and receiving it. Also, an appointed trustee may do better than the Official Guardian at investing the money. The Official Guardian will almost always turn all the assets into cash and invest them at the going interest rate. It may be that certain assets such as rental accommodations should be retained as the rate of return may be better.

ADMINISTRATION: A person by a will decides who administers the estate. The court, if there is no will, would appoint an "Estate Trustee", a person or persons who are usually the closest relatives to the person who died. The person or persons appointed may not be the people one would have chosen. In a will, one might have appointed the most responsible child or a friend but the court, if there is no will, might appoint another person. By his will, a person can and usually does give more powers to the estate trustee (formerly called the executor) than the law does to a court appointed trustee. This may be important if the assets need to be managed (such as rental property or a business) rather than sold.

CUSTODIANS: The Children's Law Reform Act now allows one to appoint by will the custodian of one’s minor children. This appointment is only valid for ninety days from the date of death, but an appointment can be of great benefit as upon the death of a parent, for the initial ninety day period, there would be no argument as to who should look after the children, as the decision will have been made. It will reduce greatly the emotional stress among the relatives and children if they do not have to argue and discuss where the children should reside. The final decision as to the custodian which will be made by the court will be easier, and probably less contested if the will states the parent's preference.

BURIAL ARRANGEMENTS: One’s wishes as to his or her mode of burial is often expressed in one’s will, though legally the wishes are not binding on the executor. If one is eccentric and wants his or her ashes spread over the North Pole or wants a great party at his or her funeral, one should carefully choose an executor who will carry out these wishes.

ADMINISTRATION PROBLEMS: Even if the Succession Law Reform Act provides the same beneficiaries, age of distribution, estate trustee and the court appoints the custodian that one would have chosen, there may be extra administration costs when one dies without a will especially in smaller estates. In a small estate, banks and other institutions will give the executor money or assets in their possession upon obtaining a copy of the will. They will not make an executor go to the expense of probating the will (probate is a court application to prove the will). However, if there is no will, a bank or institution would most likely require that the person administering the estate apply to the court for a Certificate of Appointment of Estate Trustee which even in small estates is costly. A will takes effect on death and even before the will is probated by the court. The executor therefore can deal and manage the assets right away if that is necessary such as in order to run a small business. However, an administrator has no authority until the court appoints him. This time delay can cause problems if there are decisions that must be made immediately.

ESTATE PLANNING: The making of a will is the appropriate time to put one’s financial affairs in order and explore all aspects of estate planning. An important element of that estate planning would be to ensure that probate fees are minimized. Through estate planning, one might discover that more life insurance is needed to properly take care of loved ones, keeping in mind that substantial taxes may be payable at the time of death which may erode the value of the estate's assets. If assets are not liquid, life insurance proceeds may also assist the family until the estate has been administered. It may also be the time one gives both a Continuing Power of Attorney for Property and a Personal Care Power of Attorney to one’s spouse in case of illness or incompetence. The Family Law Act allows a spouse to sue an estate for an equalization of assets as though the couple separated. This possibility along with the possibility of dependent spouses or children pursuant to the Succession Law Reform Act suing the estate must be taken into account when drafting the will. Besides careful drafting of the will to deal with the problem, it might necessitate a marriage contract to obtain the objectives desired.

Everyone's situation is unique and may be more or less complicated than the examples given in this article. It is suggested that you seek a lawyer's advice to discuss your own personal situation.

LAWRENCE S. PASCOE

* This article can only provide a general overview of a legal topic. Readers should consult a lawyer and not simply act on the information provided in this article.
** Copyright Lawrence S. Pascoe, updated August, 1998.

CONTINUING POWERS OF ATTORNEY FOR PROPERTY

WHAT IS A CONTINUING POWER OF ATTORNEY FOR PROPERTY?
A Continuing Power of Attorney for Property (referred to in this article as “CPAP”) allows a person (the “grantor”) to give to another person (the “attorney”), the power to do anything on the grantor’s behalf with respect to the financial matters of the grantor, whether the grantor is incapacitated or not. The only exception is that the attorney cannot make a new Will. Though the term “attorney” implies a lawyer, a lawyer need not be the attorney. The granting of the CPAP does not prevent the grantor from continuing to act for himself or herself.

WHY HAVE A CPAP?
The main reason to have a CPAP is to ensure that upon the grantor’s incapacity, the person the grantor appointed as the attorney, would act on behalf of the grantor, otherwise the Ontario Government will in effect become the attorney. A family member may be appointed to take over from the Government but that is after time and money on legal fees are spent and the family member appointed may not be the one the grantor would have chosen as his/her attorney.

WHO MAY MAKE A CPAP?
A person must be over eighteen years of age to grant a CPAP. The Substitute Decisions Act, (hereafter referred to as the "Act") states a person is capable of giving this power of attorney if a number of criteria are met. Those criteria are the person: (a) knows what kind of property he or she has and the approximate value of it; (b) is aware of obligations owed to dependants; (c) knows the attorney will be able to do anything on the person's behalf in respect of assets, except make a Will and be subject to exceptions in the power of attorney; (d) knows the attorney is required to account; (e) knows the power of attorney may be revoked by the grantor; (f) appreciates that unless the attorney manages the property prudently its value may decline; (g) appreciates the possibility that the attorney could misuse the authority given to him or her. The test of granting a power of attorney is therefore not related to the ability to manage one's financial affairs but in some regards a lesser test.

WHAT DECISIONS HAVE TO BE MADE IN MAKING A CPAP?
(a) Choosing the Attorney: The only legal requirement is that the attorney be over eighteen years of age. It should be someone the grantor trusts. More than one attorney may be appointed, in which case the grantor must decide whether the attorneys must act together or may act individually. One is also allowed to appoint alternate attorneys in case the attorney appointed is not alive or unable to act as the attorney.

(b) Effective Date: The CPAP allows one to state when the CPAP comes into effect. It is recommended (and the usual practice) that the CPAP comes into effect immediately on signing the PA. The other alternative under the Act is to state that the CPAP comes into effect when the grantor is incapable. The grantor may set out the test of capacity. If the grantor is worried that the attorney will use his or her powers before the incapacity of the grantor without the grantor's knowledge, in my opinion, there is not enough trust to appoint that attorney in the first place.

(c) Compensation: The CPAP may state if the attorney may take compensation for work performed and, if so, how much. The Government has a fee schedule for attorneys. In most cases a relative appointed to be the attorney will not take compensation, but if he or she is doing considerable work, then he or she should be compensated.

(d) Gifts, Loans and Charitable Donations: The Act allows for the attorney to make gifts and loans to friends and relatives and donations to charities. A gift or loan can only be made if there was intention shown by the grantor to make such a gift or loan prior to becoming incapacitated. It is therefore best to spell out in CPAP whether the grantor does or does not want gifts and loans to be made to friends and relatives and whether donations can be made to charities.

(e) Restrictions and Conditions: The CPAP may put any restrictions and conditions on the attorney's use of the CPAP. Such restrictions may relate to the type of investments the attorney can invest in or a request that certain assets be dealt with in specific ways.

WHAT ARE THE DUTIES OF THE ATTORNEY?
An attorney is to act honestly and diligently for the grantor's benefit. An attorney is to explain to the incapable person what the attorney does and is to encourage the incapable person's participation. There is also the important obligation to keep accounts of all financial transactions.

The attorney is obligated to make expenditures that are reasonable and necessary for the grantor's care and the care of the grantor's dependants and to others whom the grantor has a legal obligation.

WHAT FORM MUST THE CPAP BE IN?
There is no requirement that a specific form must be used, simply that the intention of the grantor must be clear. The CPAP must be in writing and signed in front of two witnesses. Certain people may not be a witness such as the attorney, the attorney’s spouse or partner, the grantor’s spouse or partner, a child of the grantor (which includes a non-blood related person who is treated as a child by the grantor), a person under eighteen years of age, nor anyone under personal or property guardianship.

There is no requirement that the CPAP be registered. There is no Government registry.

A lawyer does not need to draft the CPAP to make it valid, however, the lawyer generally is doing much more than drafting the CPAP. He or she would be providing advice as to how the CPAP operates.

WHEN IS A CPAP TERMINATED?
The CPAP is terminated when the grantor dies or when the grantor makes a new CPAP. The CPAP is terminated when the attorney dies, becomes incapacitated or resigns and there is no joint or alternate attorney.

FURTHER INFORMATION
The Ontario Government’s web site at www.attorneygeneral/gov.on.ca has powers of attorney kits and further information.

LAWRENCE S. PASCOE

* This article can only provide a general overview of a legal topic. Readers should consult a lawyer and not simply act on the information provided in this article.
** Copyright Lawrence S. Pascoe, January 2004

ESTATE PLANNING FOR THE AVERAGE CANADIAN

This article discusses in a summary way the many principles of estate planning that the average Canadian should know. The average Canadian is or was married or is living with someone, has children, owns a home, works or is retired and has or will have a family net worth at the time of retirement, with their equity in their home and registered and non registered investments around $500,000. If one has less wealth than that, the principles still apply and can be just as useful. If one’s wealth is more than that, these principles still apply but that person might also benefit from more sophisticated techniques such as trusts, estate freezes, life insurance and charitable donations. Consideration of foreign tax laws would also be necessary for persons with assets outside of Canada. Special planning is also sometimes needed for situations such as a vacation property, a family business or a disabled child.

A DEFINITION OF ESTATE PLANNING
I have found that there does not seem to be an agreed upon or simple definition of “estate planning”. It is sometimes referred to as “wealth planning” , “tax planning” or “financial planning”. However, I believe estate planning deals with much more than just money, which “wealth”, “tax” and “financial” imply. I suggest that estate planning, no matter what the size of the estate, is a process which is best defined by its goals. The following are my goals of estate planning: (a) one’s assets on death go to the desired and appropriate beneficiaries; (b) the appropriate person or person is appointed to look after one’s estate; ( c) the estate is set up to be administered easily with as few conflicts as possible; (d) the amount of payments that the estate has to pay for taxes, costs and fees are minimized; and (e) what the beneficiaries pay for income tax made from their inheritance is minimized.

If one becomes mentally incompetent during one’s lifetime, estate planing allows one’s financial and personal affairs to be managed by the appropriate person or persons in an easy and orderly fashion. My definition does not consider estate planning to be about accumulating wealth during one’s lifetime. That is in the realm of investing, budgeting and tax planning. I am also not including in this article, the tax savings that can be obtained by tax techniques that can be utilized when administering an estate.

TECHNIQUES USED IN ESTATE PLANNING
Though the Will is obviously the cornerstone of an estate plan, many other techniques can and should be used to obtain the estate plan’s goals. I will review these techniques in a very brief way to show how a technique achieves the goals of estate planning. In doing so, I will also discuss when a technique is not appropriate as some techniques improperly used have created more problems than they solve. As this article is simply a brief overview, I will not discuss the specific mechanics of these techniques. Some of that information is found in other articles I have written.

Wills
A Will is a formal written document needed in every estate plan. Unless the Will is in one’s own handwriting it must be executed properly with two witnesses to be valid. The Will accomplishes the major goals of designating who gets all or most of the deceased assets on death and appoints the appropriate person or persons to look after one’s estate. If there is no Will, then the provincial law sets out who would be entitled to apply to look after the estate which may not be the person the deceased wanted. The provincial law will also dictate who the beneficiaries are and at what age they obtain their legacy. Again, people may be surprised at who the law says is entitled to the estate and it might be quite different from what the deceased wanted. A Will can also appoint who will be the custodians of minor children. Including a testamentary trust in a Will can reduce income tax payable by the beneficiaries on an ongoing basis after death. For further information about Wills, please see my article “The Reasons for Having a Will”.

Multiple Wills
The use of multiple Wills is useful when a person has assets in many different jurisdictions. Each Will can be submitted to the proper court in each jurisdiction. However, there is another use for having more than one Will. In Ontario since 1992 the case of “Granovsky vs Ontario” confirmed the legality of the practice in Ontario of having a separate Will for assets that do not need to be probated. That way probate fees could be saved on those non-probatable assets. Two relatively identical Wills are made. One for probatable assets one for non-probatable assets. This could save a substantial amount of money as in the Granovsky case when the assets under the secondary Will, being shares in a private corporation, were worth twenty-five million dollars. The cost of preparing the second Will has to be compared to the probate fees saved to determine whether it is financially worth doing multiple Wills. Real estate, money in the bank and investments are generally probatable so a separate Will is generally used in a case where there are shares in a private corporation.

Will Substitutes
There are a number of techniques used in an estate plan that are sometimes referred to as Will Substitutes because they take effect on death like a Will. They are mainly used to avoid probate fees as they pass assets to designated persons outside the Will. Some, but not all of them, also reduce the size of the estate to avoid paying claims against the estate. They generally speed up the payment to the beneficiary compared to having the asset distributed pursuant to the Will. However care must be given because improperly used, they create extra expenses and problems on death and problems even before death.

Joint Ownership
The most common Will Substitute is joint ownership . Generally the deceased has a bank account (or sometimes even major investments) registered in their name along with name of one of their adult children. Though this is the deceased’s money, this is generally done for three reasons.

Firstly, to make it easier for the children to make payments on behalf of the individual parent during their lifetime. Secondly, to avoid probate fees as probate fees are not paid on joint assets that have a right of survivorship, and lastly, the individual wants some ready cash available for the executor to pay funeral bills and other expenses upon their death.

However, I suggest that the joint bank account is not a good idea for many reasons. A Power of Attorney will accomplish the same purpose of allowing the child to use the money of the individual during their lifetime. It does not need to be a joint bank account. Secondly, upon one’s death, though the bank will freeze the bank account until probate is obtained, the banks will allow certain expenses of the estate such as the funeral bills and legal fees to be paid out of the deceased’s bank account and therefore, there is money available without having a joint account.

Though probate fees will be avoided on the joint bank account, the probate fees are only one and one-half percent of the assets and the savings are not worth the problems that joint ownership sometimes causes. The major problem that joint ownership causes is that upon death, there is often an argument between the other beneficiaries of the estate and the surviving joint tenant as to what the testator intended with respect to the money in the joint account. Cases have gone to the Supreme Court of Canada arguing whether it is the surviving joint tenant who gets the money or is it really part of the estate. If a joint account is going to be used then the Will must make it clear as to what the intentions of the deceased are.

There are however, other problems that are created by having joint ownership. There is the possibility that the child with whom there is joint ownership, takes the money themselves and uses it for their own benefit. If the child gets divorced, their spouse may argue that the joint account is really their spouse’s and there could be an argument in the divorce proceedings. This is especially common if a cottage is put in joint names with a child. If the child goes bankrupt, the trustee in bankruptcy may argue that the asset is really half owned by the child as opposed to the parent alone.

If a house is put into joint ownership with a child then there are tax issues because one can have only one principal residence. Taxes may have to be paid on the child’s interest in the house from when it was put into joint ownership until it is sold. If property, such as a house, is put into joint names with all the children to save probate fees and the individual sells the house before they die, then there are a lot of extra costs in getting every child to sign the Deed and acknowledge that they have no interest in the property.

Therefore, in conclusion , it is generally not a good idea to put any assets in joint names with one’s children unless it is done properly and all the possible problems are looked at.

Named Beneficiary
One can name a beneficiary to one’s life insurance, RRSP or RRIFs and in some cases for investments. This is always a good idea between spouses but not always such a good idea with one’s child or children. Though the case of Neufield v Neufield said it may be debatable as to whether the estate or the child should be the beneficial owner, generally the beneficiary is the owner. Often the parent will name one child as the beneficiary of life insurance believing that the child will use that money to pay for the funeral expenses and perhaps distribute the balance among their siblings, however, they are under no obligation to do so. Again, care should be taken to determine as to when and if there should be a named beneficiary to life insurance and RRSPs. Another problem with RRSPs is that the tax is paid by the estate, though the money goes directly to the beneficiary without tax being withheld, so there could be an issue as to who is ultimately responsible to pay the tax on the RRSPs.

Gifts
Often one will give away assets to one’s children during their lifetime. However, often after the donor dies, there is an argument whether a gift was actually made. The best way to ensure a substantial gift is made is to document the intention that a gift was made by the donor.

Marriage Contracts
A lawyer will review when doing one’s Will what obligations one has to their dependant children and one’s spouse to ensure that the Will satisfies those obligations. If those obligations are debatable or if one does not intend to live up to their obligations, then there should be a Marriage Contract in place to ensure that there is no claim against the estate when the person dies. For further information please see my article on Marriage Contracts.

Loans
Often a parent gives some or all their children money in advance of their death. It is often assumed it will be paid back when the parent dies, so that in the end all children share equally. If loans are made, it is very important that the Will state whether a loan has been given and how much will be subtracted from a child’s legacy, otherwise there may be an argument whether it was a gift or a loan and there could be enforcement of the loan issues. It is also good to document how much the loan is and how much has been paid back.

Trusts
Though all estate plans will have a Will and a Continuing Power of Attorney, they may or may not have a trust or trusts. Trusts are useful for a wife variety of estate planning purposes for tax and non-tax purposes. The most common non-tax purpose would be to hold assets for minor children until they reach age of majority or even later. The most common tax purpose would be to income split and reduce probate fees. Both the law of trusts and taxation trusts are very complex. I hope to explain the basic concepts in a future article.

Organizing Estate Information and Instructions
There are millions of dollars in the Bank of Canada for unclaimed bank accounts. There are millions of dollars worth of insurance policies that have never been claimed. The reason is that the executors did not find where all of the deceased’s assets and insurance policies were located. Therefore, it is a good idea to have a system which is kept up to date which sets out precisely for the executor, the contents of estate.

Often if the deceased was not organized and did not keep such a list, the knowledge of an asset only comes to light months later when the annual premium or statement comes in, which might mean that the estate has to be reopened. Without a good system of keeping up to date where the assets are, there is also the worry that the executor never found all of the assets. Therefore, I suggest that there be some process to keep an up to date a list of one’s assets for the executor.

Often without clear instructions from the deceased as to the mode of burial, there is an argument among the children as to the funeral and burial arrangements. Again, the best way to avoid this is to preplan one’s funeral or at least there should be a clear process which sets out what one would like one’s funeral and burial to be. Proper instructions should also be given if one wants to donate their organs on death. Please see my article entitled Preparing for an Easier Administration of an Estate.

Powers of Attorney
A person is allowed to appoint another to look after their financial and personal needs if they become incompetent during their lifetime. Financial matters are found in a Continuing Power of Attorney for Property and personal and health matters are dealt with in a Personal Care Power of Attorney. Though a directive about whether a person wants to kept on a life support system if there is no reasonable prospect of regaining consciousness can be a separate document, that directive is usually found in the Personal Care Power of Attorney. Please see my article on Powers of Attorney for more detailed information about both types of Powers of Attorney.

CONCLUSION
I would suggest that everyone should have a Will and both types of Powers of Attorney. One should plan properly if they use joint ownership, a named beneficiary of a specific asset, gifts, loans and trusts. If they are in a second marriage, they should strongly consider a Marriage Contract, or a Cohabitation Agreement if it is a second relationship. And everyone, to reduce both the financial and emotional costs of administering an estate, should organize their information and instructions that are needed on their death. They should investigate the need in their case for more sophisticated techniques such as multiple Wills , trusts, estate freezes, life insurance and charitable donations. They should also review their estate plan and update it on a regular basis as their factual situation changes and perhaps if the tax laws change.

LAWRENCE S. PASCOE

WILL, POWERS OF ATTORNEY & ESTATE DEFINITIONS

Administrator: An administrator is a person appointed by the Court to administer the estate when there is no will, the will did not name an executor, an executor has died, or an executor is unwilling to act. A female administrator, is called the "administratrix". This person is now technically called the "Estate Trustee Without a Will" but the term administrator is still used.

Attorney: The person appointed to look after the donor's financial affairs in the case of a Continuing Power of Attorney for Property or the donor's medical affairs in the case of a Power of Attorney for Personal Care. An attorney does not have to be a lawyer.

Beneficiary: A person who receives a benefit or gift under a will, or a person for whose benefit a trust is created.

Certificate of Appointment of Estate Trustee with a Will: The Court document, which includes a certified copy of the will, whereby the Court confirms the executor named in the Will is entitled to administer the estate. This document was previously called "Letters Probate".

Certificate of Appointment of Estate Trustee without a Will: This Court document, confirms a person, formerly called an administrator, now called the estate trustee without a will, has the authority to administer the estate. This document was previously called Letters of Administration.

Children's Lawyer: The Ontario Government official responsible for looking after the interests of children under the age of 18 for all legal matters, but not generally the management of a child's money. That is done by the Public Guardian and Trustee.

Codicil: An amendment to a will which makes changes or additions. A codicil must be executed with the same formalities that a will is executed.

Continuing Power of Attorney for Property: A written document allowing a person (the donor) to name another person (the attorney) to make financial decisions on behalf of the donor, including if the donor is physically or mentally disabled.

Custodian: The person named in a will to look after one's minor children in case of death. This appointment is not binding upon the Court. The custodian used to be known as the guardian.

Donor: The person appointing an attorney in powers of attorney.

Estate Trustee: The person named in a will to represent the estate of the deceased person. Also known as executor.

Estate Trustee Without a Will: A Court appointed person to administer the estate of a person, where that person died without a will, the executor died, the executor is unable to act, or an executor was not named. The person is also known as an Administrator.

Executor: A person or trust company named in a will to be responsible for managing the winding up of the deceased's estate. Since January of 1995, this person is technically called the Estate Trustee though the term executor is still used in wills. A female executor is called an executrix and more than one female are called executrices.

Family Law Act: The Ontario Governments law that deals with rights of spouses during marriage, separation and upon death.

Intestate: A person who dies without a will. A partial intestacy is where a valid will does not dispose of the whole of the estate.

Issue: All persons who have descended from a common ancestor. It is a broader term than children which is limited to one generation.

Joint Tenants: A form of joint ownership in which the death of one joint owner results in the immediate transfer of ownership to the surviving joint owner or owners. See Tenancy in Common.

Letters of Administration: This is the old term for what is now called "Certificate of Appointment of Estate Trustee without a Will".

Letters Probate: This is the old term for what is now called "Certificate of Appointment of Estate Trustee with a Will".

Notarial Certificate: A certificate which a notary public signs and attaches to a copy of a document to certify that the copy is identical to the original. All lawyers are also notaries.

Notarial Copy: A copy of a document to which a notarial certificate is attached.

Official Guardian: This person is now called the "Children's Lawyer".

Per Stirpes: Division of an estate on the basis of representation of the same lineal stock, or the same family. The beneficiary takes a share to which his or her deceased parent would have been entitled. Therefore, if there are three children of a deceased person, with each child having two children (therefore six grandchildren), then if one child is not alive, each grandchild would get 1/6th of the estate, being ½ of 1/3.

Power of Attorney for Personal Care: A written document allowing a person (the donor) to appoint another person (the attorney) to look after the donors personal and medical matters if the donor is unable to.

Probate Of Will: Formal proof before the proper officer or court that the will offered is the last will of the testator and confirming the Executor(s) named. This is now called an Application for Certificate of Appointment of Estate Trustee with a Will.

Public Guardian and Trustee: The Ontario Government official who, in the absence of a named executor, administrator or attorney, is responsible for administering an estate, or the affairs of an incompetent person. This official also manages the money of children when no trustee was appointed.

Settlor: A person who establishes a trust.

Succession Law Reform Act: The Ontario Government Act which deals with many issues of estate law, including support of dependants, what happens when a person dies without a will and the rules governing the making of wills.

Survivorship Application: A document a surviving joint tenant registers in the land titles system to transfer the deceased's share of the property to his or her name only.

Tenancy in Common: A form of joint ownership in which the death of one owner does not result in the immediate transfer of ownership to the surviving owner but the deceased's interest becomes part of the deceased's estate.

Testator: A male person who makes a will.

Testatrix: A female person who makes a will.

Transmission Application: A document filed in the land titles office to have title transferred to the name of the personal representative of a deceased owner to enable the personal representative to deal with the property.

Trust: A legal arrangement in which one person (the settlor) transfers title to a person (trustee) to manage the property for the benefit of a person or institution (the beneficiaries). When the trust takes effect on death, it is called a "Testimary Trust". When the trust takes effect during the settlor's lifetime, it is called a "Inter Vivos Trust".

Trustee: The person or trust company that manages property according to the instructions in the trust agreement and the laws governing trustees.

Will: A legal document, prepared by a person, called a testator or testatrix if female, in compliance with formal requirements, which takes affect on his/her death and which states what he/she wants to happen to his/her property on death. The will also decides who manages the property. The will may discuss custody of minor children and the funeral arrangements, though custody is not binding upon the Court and the funeral arrangements do not technically have to be followed by the executor.

Will Questionnaire

(click here to be directed to the interactive form)

A. PERSONAL PARTICULARS

FULL NAME: _______________________________________________________________
OCCUPATION: _____________________________________________________________
WORK PHONE NO: _________________________________________________________
CELL PHONE NO: __________________________________________________________
BIRTH DATE & PLACE: _____________________________________________________

FULL NAME: _____________________________________________________________
OCCUPATION: ___________________________________________________________
WORK PHONE NO: ________________________________________________________
CELL PHONE NO: _________________________________________________________
BIRTH DATE & PLACE: _____________________________________________________

ADDRESS: ________________________________________________________________
CITY: ____________________________________________________________________
POSTAL CODE: ___________________________________________________________
HOME PHONE NO: ________________________________________________________
FAX: ____________________________________________________________________
EMAIL: __________________________________________________________________

FULL NAMES, ADDRESSES AND BIRTH DATES OF CHILDREN:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

B. PROPOSED EXECUTORS AND TRUSTEES (Persons who administer the estate)
Proposed Executors and Trustees: _____________________________________________
Address: ________________________________________________________________
Proposed Alternate Executors and Trustees if above should not be alive:
________________________________________________________________________
Address: _________________________________________________________________

C. PROPOSED CUSTODIAN (Guardian of Children)
Proposed Custodian of children if parents are not alive: _______________________________
Proposed Alternate Custodian: _________________________________________________

D. (1) PROPOSED DISTRIBUTION OF ESTATE
Names of beneficiaries (complete names and addresses of charitable institutions) and amount of bequest or item to be bequeathed: ________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________

Residue of Estate (balance of estate after debts paid): _________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________

(2) ALTERNATE DISTRIBUTION
Names of beneficiaries (if persons above are not living at the time of your death): _____________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________

E. AGE CHILDREN AND GRANDCHILDREN TO RECEIVE BEQUEST
Children 18 ____ 21 ____ 23 ____ 25 ____ other ____
Grandchildren 18 ____ 21 ____ 23 ____ 25 ____ other ____

F. SPECIAL FUNERAL INSTRUCTIONS
Cremation: Yes ____ No ____

G. LOCATION OF PREVIOUS WILL
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________

H. OTHER INFORMATION that may be relevant to be discussed at interview
Previous marriages: __________________________________________________________
Marriage contracts: __________________________________________________________ 

NOTE: This form is designed for a single person or a couple who have the same instructions. If the couple have different instructions, please use a separate page for each person to provide the information.

Click here to fill out our Will Questionnaire on-line.

Personal Care Power of Attorney Questionnaire

(click here to be directed to the interactive form)

Will and Power of Attorney Asset Information

(click here to be directed to the interactive form)

LAWRENCE S. PASCOE

Resume of Lawrence Stephen Pascoe

Email: lspascoe at thepascoedifference.com

Birth Date and Place: October 22, 1949, Toronto, Ontario

Education and Professional Qualifications:

• Bachelor of Commerce (Honours), Dalhousie University(1972)
  
• Bachelor of Laws, Dalhousie University (1975)
  
• Ontario Bar Admission Course (1977)
  
• Family Mediation Training Course (1990)
  
• Collaborative Lawyers Training Course (2001-2002)
  

Specific Areas of Practice:

• Family Law: I advise clients of their rights and obligations when they separate or are thinking of separating from their spouse. The major issues being custody and access, dividing their assets and support for the spouse and children. I also advise my clients about the many processes that may be used to resolve the issue of a separation and I represent them in the process they choose which may include going to mediation meetings or representing them in an arbitration or court hearing.
  
• Wills and Powers of Attorney: I advise clients on Estate Planning which involves drafting Wills, Powers of Attorneys and Trusts and provide advice on; how to ensure that on their death their assets go to the appropriate desired beneficiary; ensuring that the appropriate person or persons look after the estate; reducing problems and conflicts that may arise in administering the estate; minimizing the amount of payments the estate pays for taxes, costs and court (probate) fees; and inheritance.
• Administration of Estates: I advise the personal representative of an estate (executor) as to what is required to administer the estate and then, as directed by him or her, administer the estate, which might involve applying to the court for the Certificate of Appointment (probate), dealing with the assets, paying debts, and accounting to beneficiaries.
  

Organization Affiliates:

• Canadian Bar Association
  
• American Bar Association
  
• County of Carleton Law Association
  
• Law Society of Upper Canada
  
• Member of Annual Family Law Institute Organizing Committee (1999 to present)
  
• Member of Collaborative Law Network
  

Teaching Experience:

• Algonquin College, Legal Assistant Program (1978-1980)
  

Seminar leader,

• Ontario Bar Admission course Family Law (1986)
  
• Law Society Continuing Education Program on Pensions and Family Law (1988, 1994)
  
• Ontario Bar Admission Course Practice skills (Family Law),(1989, 1990); Negotiating Skills (1993, 1996)
  

• Ontario Bar Admission Course; dependent’s relief claims in estates (1988 - 1990)
  
• Ontario Law Society Continuing Education Program dealing with estate litigation (Dependent's Relief Claims), 1987
  
• Ontario Law Society Continuing Education Program; marriage contracts (1987 - 1988)
  
• Canadian Bar Association Annual Institute Program; Pensions and Family Law (1989)
  
• Law Society Continuing Education Program for Legal Secretaries; preparing Financial statements
  
• Law Society Continuing Education Program for Family Law Lawyers; Employment Benefit Clauses (1990)
  
• Canadian Society for the Advancement of Legal Technology (1994, 1996)
  
• Family Law Motions: Practice and Strategy (1994)
  
• Institute of Family Law, The Life Insurance Clause in Separation Agreements (1996)
  
• Federation of Law Societies, The Life Insurance Clause in Separation Agreements (1998)
  
• County of Carleton Law Association and Law Society Continuing Education Program, Determining Income of the Self-Employed under the Child Support Guidelines (1999)
  
• Law Society Continuing Education Program, Basic Management Principles for Lawyers (May 2000)
  
• Law Society Technology for Lawyers conference, Some Thoughts on Producing and Marketing a Law Firm's Web Site (November 2003)
• Law Society and Ontario Bar Association’s Annual Solo on Small Firm Conference and Expo - Lawyers Can Be Different - Providing Innovative Legal Services (2006)
• Law Society and Ontario Bar Association’s Annual Solo on Small Firm Conference and Expo - Some Thoughts About Using Technology to Market Legal Services (2007)
• Institute of Family Law - Stress Management for Lawyers (2007)

Public Speaking:

• Support (unpublished except on Web site)
  
• Custody and Access (unpublished except on Web site)
  
• Powers of Attorney (unpublished except on Web site)
  
• Changing your Will (unpublished except on Web site)
  
• Reasons for Having a Will (C.J. Journal South and Women’s Credit Union Handbook)
  
• Professional Negligence and Responsibility Issues for lawyer’s in dealing with Marriage Contracts (Ontario Law Society Continuing Education Program in 1987 published by Carswell Company in 1988 in a book entitled Marriage Contracts (1988)
  
• Administration of Estates (C.J. Journal South)
  
• Custody and Access to Children (C.J. Journal South)
  
• Family Mediation (O.A.F.M. Newsletter)
  
• Division of Assets (Clarion Newspaper, April, 1989)
  
• Wills and Minor Children (Clarion Newspaper, May, 1989)
  
• Separation and Divorce (Clarion Newspaper, Sept., 1989)
  
• Division of Pensions on Marriage Breakdown (Clarion Newspaper, Jan. 1990)
  
• Marriage Contracts (Clarion Newspaper, March, 1990)
  
• Employment Benefits (Law Society Continuing Education, April, 1990)
  
• Updating your Will (Clarion Newspaper, Summer, 1990)
  
• Lawyer Client Relationship (Clarion Newspaper, Autumn, 1990)
  
• Preparing For An Easier Administration of an Estate (Clarion Newspaper, Winter 1991)
  
• Divorce Mediation (Clarion Newspaper, April, 1991)
  
• Agreements of Purchase and Sale (Clarion Newspaper, August 1991)
  
• Lawyer’s Role When Purchasing a Home (Clarion Newspaper, Sept.,1991)
  
• Lawyer’s Role When Selling a Home (Clarion Newspaper, Oct., 1991)
  
• The Legal Process in Matrimonial Disputes - Part 1
  (Clarion Newspaper, Nov., Dec. 1992, Jan. 1993)
  
• Using Technology to Improve Marketing of Legal Services
  (CSALT Annual Conference, April, 1994)
  
• Family Law Motions: Practice and Strategy (Law Society Continuing Education) (June, 1994)
  
• Marketing, Technology & The Sole Practitioner/Small Law Firm
  (CSALT Annual Conference, May 1996)
  
• The Life Insurance Clause in Separation Agreements
  (Family Law Annual Institute, May 1996)
  
• The Life Insurance Clause in Separation Agreements
  (National Family Law Conference, June 1998)
  
• Determining Income of the Self-Employed under the Child Support Guidelines (Law Society Continuing Education Program, 1999)
  
• Some Basic Management Principles for Lawyers, Law Society Continuing Education, May 2000
  
• Some Thoughts on Producing and Marketing a Law Firm's Web Site (Law Society Technology for Lawyers conference, November 2003)
  
• Lawyers Can be Different - Providing Innovative Legal Services (Law Society and Ontario Bar Association, April 2006)
  
• Some Quick Thoughts on Managing Information and Documentation in Family Law Files (CCLA Family Law Institute, June 2006)
• Some Thoughts About Using Technology to Market Legal Services (Law Society and Ontario Bar Association, 2007)
• Stress Management for Lawyers (Institute of Family Law 2007)

MY SERVICE PRINCIPLES - THE PASCOE DIFFERENCE

Providing competent and economical legal services is extremely important to me. In addition, I am committed to delivering products that are innovative and very client-oriented. This has resulted in aspects of my service which my clients have appreciated and which are not found elsewhere.

These value added features are found at every stage of my services. I start with my Packets which serve many functions. They contain articles that give an overview of the law in non lawyer's terms. These articles discuss the legal process and your rights and obligations. The Packets contain information forms to show what facts are required to process the file. Knowing something about the law and preparing the information needed beforehand reduces the time spent at the initial consultation and therefore reduces your costs. The Packets contain a detailed resume of my years of experience since 1977 and a schedule of my fees. I believe that your anxiety level will be reduced even before our first consultation with all this information about the law, the process, myself, the fees and the facts.

At the next stage of my Family Law and Estate Administration, I introduce my Manual. The Manual serves two important functions. It contains more articles, checklists and work sheets, all with details needed to help you better understand the process. There is so much to know and remember. It is good to have that information in a written, comprehensive and organized form. The Manual is a convenient place to hold letters and the sometimes voluminous documentation generated throughout the file. I ensure my clients get copies of everything - you are kept informed. Obtaining and storing this information in an organized fashion allows you to participate and to make better decisions. The Manual also serves as a good record of what occurred after the file is completed. This is also important for necessary follow up work. Throughout the process of the file, additional articles may be distributed depending on the nature of the file.

In a Will and Powers of Attorney matter the Manual does not come into play until the final stage of the file. It then serves the same functions stated above with more of an emphasis for keeping ongoing records and for following up matters. In Will and Powers of Attorney files, I send letters to the Executors and Attorneys with articles and information that they should know to assist them with their responsibilities.

After the file is complete I keep in touch with my clients. I have an Internet World Wide Web site. On it I post new articles and have a Resources Page documenting other WEB sites of legal interest. I now have a data base on each client. When a client calls me after the file is closed, I can quickly obtain the major particulars of their file. I can probably answer questions faster and not have to wait to get the file from storage. I encourage clients to call me any time after the file is complete with questions - yes, even though I am not getting paid for this additional work. My magnetic refrigerator business card means my phone number is always nearby.

I am continually striving to improve my services. That is why at all stages of my service I encourage opinions and have client surveys. I have the Client Survey Contests with prizes to obtain that important feedback from clients and/or prospective clients. Many good ideas have come from clients that have resulted in improvements to my service - I listen to my clients.

Many law firms are beginning to advertise and to market their services aggressively even using professional advertising agencies. Some of their ads will promise a commitment to excellent client service at a reasonable price. What firm, what business, would not say that it provides good service at a fair cost? But I invite you to compare the actual features and not the rhetoric, of other lawyers's services with mine. I believe that I have given you concrete examples of how I provide innovative and client-oriented legal services.

LAWRENCE S. PASCOE

1. Have you ever used a lawyer? Yes ____, No ____

2. If yes to question number 1, how did you choose a lawyer the last time you used him or her? (You may choose a combination of factors, but please rate the priorities of the reasons)
_____ (a) Location of Office
_____ (b) Recommendation of a friend
_____ (c) Previously used that lawyer
_____ (d) Yellow Pages Advertisement
_____ (e) Newspaper Advertisement
_____ (f) Recommendation of a related business contact (eg: real estate agent)
_____ (g) Lawyer spoke to a group you belong to
_____ (h) Read about the lawyer in a newspaper or saw on television

3. What factors are important to you when choosing a lawyer? Please rank in order of importance.
_____ (a) Location of office
_____ (b) Hourly rate or fee
_____ (c) Number of years of practice
_____ (d) Specialist in the area of law required
_____ (e) The recommendation of a previous client
_____ (f) The recommendation of a business contact
_____ (g) An attractive advertisement

4. Did you refer friends to your previous lawyer? Yes ____, No ____

If not why not?
_____ (a) Did not like the work done
_____ (b) Did not like the lawyer's personality
_____ (c) Did not like the fee charged
_____ (d) Did not like how long the work took
_____ (e) Did not have the opportunity to refer friends
_____ (f) Did not think of referring friends
_____ (g) Other

5. Comments about Choosing a Lawyer
________________________________________________________
________________________________________________________
________________________________________________________

Name
________________________________________________________

Address
________________________________________________________
________________________________________________________

Home Phone Number
________________________________________________________

Work Phone Number
________________________________________________________

Mail Address
________________________________________________________

Date
________________________________________________________

Click here to fill out our Choosing a Lawyer Survey on-line.

Click here to fill out our Will and Powers of Attorney Packet on-line.

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