Putting together a plan for what will happen to your assets on death can sometimes feel like an overwhelming task. There are so many variables to consider: How will my debts be paid? How do I make sure that all my kids are treated fairly? How do I ensure that my farmland will remain in my family?
If these questions sound familiar to you, and you are not sure where to start, a helpful first step is simply to gather information:
- Make a list of all of your current assets. Think about how these assets are owned. For example, do you own the asset personally? Jointly with another person? Is the asset actually owned by a corporation?
- Make a list of all your debts.
- Write down the names and contact information of your current advisors. For example, who do you deal with at the bank? Do you have an insurance advisor? Do you have an accountant? Do you have a lawyer?
- Gather up any estate planning documents you may already have. For example, do you currently have a Will? Even if it was made many years ago, it is helpful to locate where the original is stored and review the contents. Do you have a Power of Attorney? Do you have an interspousal agreement which governs what happens to your property in the event of a separation? Are you a party to a shareholders’ agreement?
This information will help to build the foundation for your estate plan.
There are three key estate planning documents:
1. The Will. This is the document that people usually think of when contemplating estate planning. Your Will governs what happens to your property when you die. Before you die (and so long as you have capacity), you can continue to make changes to this document, and/or to sell, rent or liquidate any assets mentioned in the document.
In Saskatchewan, there are two types of Wills: (a) Formal Will – this type of Will is usually typewritten and requires the signature of two witnesses. There are certain restrictions on who can act as a witness. (b) Holograph Will – this type of Will is all in your own handwriting and signed and dated by you. There are no witnesses required for this type of Will – and if someone else signs the document, it is no longer considered a valid “holograph” Will.
If you do not have a Will when you die, or if your Will does not completely dispose of all of your property, the division of assets will be governed by The Intestate Succession Act, 2019. The order of gifting under that legislation is largely dependent on whether you have a spouse and/or children. There will be a different result depending on whether your children are also the biological or legally adopted children of your spouse.
2. The Power of Attorney. This document is valid while you are alive. As soon as you die, it is no longer relevant and your Will governs your affairs. The purpose of a Power of Attorney is to provide for someone to manage your property and your personal affairs when you are unable to do so for yourself. The use of the document can be conditional on the happening of a certain event – for example, if a medical doctor says you are not capable of dealing with your own affairs.
This document allows someone else to pay your bills and manage your finances. It also allows someone to make decisions for you in connection with where you will live, what you will wear, and what activities you get to participate in.
If you do not have a valid Power of Attorney in place, and you lose the ability to make decisions for yourself, the only option is for a family member (or close friend) to make an application to the court to be appointed as your legal “guardian”. This is a time consuming and expensive process.
3. Health Care Directive or “Living Will”. The final document only comes into effect when you cannot speak for yourself. The purpose of the Health Care Directive is twofold: (a) to set out specific instructions for the health care team; and/or (b) to appoint a person (or more than one person), known as a “proxy” who can make decisions about your health care on your behalf.
If you do not have a Health Care Directive, and you are unable to make a health care decision for yourself (i.e., because you cannot speak or communicate), then The Health Care Directives and Substitute Health Care Decision Making Act (Saskatchewan) will apply to determine an appropriate decision-maker.
It is never to early to begin thinking about your estate plan. Do not hesitate to reach out to your team of advisors for help. If you do not currently have a lawyer or advisor, it is important to find one that you trust and feel comfortable talking to about these issues. If you would like to read further on this topic, the Public Legal Education Association of Saskatchewan has some excellent estate planning resources that are complimentary to the public (see: https://www.plea.org/plans-for-the-future).
The information in this guide is not legal advice. We encourage you to consult with your legal advisor for specific advice.
This article was originally published in The Western Producer. Amanda Doucette is a lawyer and partner with Stevenson Hood Thornton Beaubier LLP in Saskatoon.