E64: You Need a Will with Jessica Feldman Chittley

Foreign. This podcast is brought to you by Gensler Wealth. The information discussed today is meant to be general in nature and not tailored to your specific investing or financial circumstances. This means that you should talk to your regular Gensler wealth advisor or your own advisor before acting on any information we discussed today. Nothing in this podcast is intended to be a solicitation and past performance does not guarantee future returns. If you are listening today to experience laughs and hilarity, unfortunately you will be disappointed as today's topic is a serious one. Today on the Limited podcast, the first in our Wealth Hard series, we speak with Jessica Feldman Chitley, partner at Bale Spiels llp, on the important topics of wills and powers of attorney, what are they, why you need them now, and best practices. Let's go. Well, hi everyone. Welcome to the first live interview, I guess, of 2026 of the unlimited podcast. If you listen to my quarterly letter a few weeks ago, you will know we've got a new theme here we're talking about. We call it Wealth Hard. Wealth is hard. It's not simple. We help folks with all the hard stuff that touches them from a wealth perspective. So what I thought I would do is actually carry that theme a little bit for the first few months, first few episodes, and talk a little bit about some of the things that folks need to do that's not just really investing. It's the more holistic wealth management, financial management aspects of their lives. I will say that, you know, this Wealth Hard theme that I introduced a few weeks ago, it sort of encompasses the interview that I did with Ira Gluskin late last year where he actually interviewed me and we talked about what we do holistically for families. There is the Wealth Hard microsite Wealth hard dot com. There's the Wealth Hard game. See if you can beat the index over the last hundred years or so. And the topic for today, and I don't know if this is something that is maybe well known by our listeners, not so well known, but I'm constantly amazed when I meet with families and wealthy families and very smart families that do not have any of this planning in place. I sort of almost fall off my chair. And the planning is wills and powers of attorney for the most part. And the idea today is I think we just want to do a little bit of a wills, powers of Attorney 101, give you the high level. So I'm going to stop blabbing. Really happy and excited to have Jessica Feldman Chitley with us here from Bales Beale. Full disclosure, Jessica and I are spending lots of time together because she's helping me as I play the executor role for my uncle's estate. So I'm definitely learning hands on and learning from Jessica. Hands on, I should say. So, Jessica, nice to see you and have you here.

Thanks for having me.

Let me give the formal intro and then you could tell us a little bit more about yourself and then we'll get right into key meat of the discussion. But Jessica is a partner at Bales Beale llp. She focuses on estate and trust planning and estate administration. She advises individuals, families, and private business owners on tax minimization at death. She drafts wills, trusts, and powers of attorney and guides executors like me through the administration process. She's an adjunct professor at the University of Toronto Faculty of Law, serves on the executive committee of the Ontario Bar Association's Trust and Estate Law section. She's a member of the Society of Trust and Estate Practitioners and the Canadian Ontario Bar Associations, and was recognized in the Best lawyers in Canada 2025 for trusts and Estates. Guess the summation there is. You know what you're doing. Hopefully I've got all that right.

The only correction is that I was. I'm a former adjunct professor. I've given that up. Everything that Brian said about my practice is true. The only thing I would add. So I basically handle anything related to estates, trusts, wills until it becomes litigious. And my practice tends to have a bit of a family law focus because I work in a firm where we specialize in the intersection of family law and estate law.

Okay, amazing. All right. Again, I think it's a little bit of back to basics. And as I say, I never really know if folks know all this or don't, but I think what we want to try to cover without giving away the whole sort of script here is it's like the who, what, where, when, why and how. Although I don't know if I have a who or a where. But what's a will and power of attorney? Why do we need this or why do people need this? What if you don't have it? How do you structure them? So maybe just starting right at the top. I know it's basic, but like what? We'll start with wills, we'll do powers of attorney after maybe. What is a will and why is this important?

Basically, So a will is a document which could be handwritten in certain circumstances or typed with. If it's going to be typed, it needs witnesses where an individual sets out who they want to be Their executor, the person to handle their estate after they've died, and how they want to divide their estate. It can be as simple as that. Certainly it goes from that to far more complex. But effectively it's just a document setting out the instructions on how to distribute what you own at death and why it matters. Because I feel like that's your next question. To answer the question of why it matters, I think I need to go back a step and first explain what happens if you die without a will.

Right.

So there's a common misconception in the law that if you die without a will, everything you own goes to the government. And that is just not true. Instead, if you, at least in Ontario, well, it is the the same. There are similarities in the other provinces, but for today's purposes, in Ontario, if you die without a will, you know, the law has written one for you. And I'm not going to go through every scenario, but sort of to hit the highlights here, if you die without a will, which we call dying intestate, and you have a legally married spouse and no children, everything goes to the spouse. So that's sort of like the easiest scenario. If you are die intestate and have a legally married spouse, but also have descendants, children, grandchildren, your spouse gets the first 350,000 of your estate, which is called the preferential share. And then the balance of that is divided amongst the spouse and the children, depending on how many children there are. So if there's one child, the spouse gets the remaining half and the child gets half. If there's more than one kid, the spouse gets a third and the children share 2/3, irrespective of how many there are. If someone dies without a will and they don't have a legally married spouse, but they have children, everything goes to their children equally. If any of their kids have died, it goes down the lineal chain. And where this sort of, I mean, all this is sort of probably would have guessed that some of this is what the law says. But where it gets interesting is if you die without a legally married spouse or children, and even if you have a common law spouse, by the way, everything goes to parents if they're alive, if they're not alive, then to siblings, if not alive, then to nieces and nephews. And then you go down the next of kin chain until you end up there are seriously no relatives at the government.

Okay. So you know, for me, when I hear folks, and we'll dive in a little deeper in a second, but when I hear that people don't have a will or they haven't done planning. There's more pieces to the will than just where the assets are going, especially if you have kids and whatnot. But like, I always sort of freak out a little bit. I'm like, oh my God, you don't have a will. Like, you got to set this up tomorrow and this and that. And well, people probably don't want the government to just prescribe how all the wealth is going to be distributed as you just described. Am I wrong? Like, maybe I shouldn't be so, you know, worried when I find out that someone doesn't have a will. Like, sounds pretty good, Give my oath a bunch of money, split it amongst the kids. I don't have time to worry about this. So, like, I don't know, am I worrying unnecessarily on behalf of my clients and people that I hear that don't have will?

I wouldn't say you are worrying unnecessarily because I don't think that what the law provides, it only works in very small situations. Like take an elderly individual who's already lost their spouse, doesn't have a common law spouse and wants and has great relationship with their children, wants to leave everything to their children equally so they die without a will. And maybe they don't have a complex estate, big deal. But a will is the only way that you can set up trust. For instance, so many wills I draft, whether they're for parents or grandparents, create gifts for minor beneficiaries. An individual under the age of 18.

Hang on a sec. So just back up for one moment. So in the description you just gave, where if you have a legally married spouse and a bunch of children, the government just prescribes that the children are going to get X and Y. But if the children are under 18, what happens in that scenario where you don't have a will then?

Right, so what happens there is that if someone under the age of 18 becomes entitled to a share of an estate and either because the will is silent on it or there is no will, doesn't. There's. So there's no trust provisions. That beneficiary share has to be paid into court. Technically it's the accountant for the Superior Court of Justice.

Oh, gosh.

And then the funds are released to that child with interest at age 18. The accountant for the Superior Court of Justice has an administration fee. And aside from the administration fee and the fact that the whoever the guardian is has no ability to manage the money you are having, you are releasing that money to an 18 year old, which is probably not what you would have done if the person had otherwise done a will with some legal advice.

Right, okay. Yeah, not good. I'm sure you've come across not very good circumstances as you're sort of alluding to.

Yeah, so I mean, I think like the question is best answered with some examples which I'm going to give one to do with the minor beneficiary issue. So I recently had a file where young ish family, husband and wife, one child who is 10 years old, husband dies, the house is in his name and it's the only asset of the estate. So it's his name and alone, it's not held jointly, it's really only his only asset. It was gifted to him. So they don't have a lot of money otherwise. So they have a house worth $1.5 million, not subject to a mortgage, and you have death without a will. So what happens? So the spouse who's living in the home obviously with the child is entitled to the notionally the first $350,000 of the estate. So, okay, you'd think, okay, that take that from the equity and then the child and the spouse are both entitled to half of the balance. So practically what this means is that the child is entitled to a portion, a large portion of the equity in the home. She is 10 years old. And because there's no will, there's no terms of trust without a will. The default provision is that all assets have to be sold and the cash be liquidated.

Oh, wow.

But obviously in this case, the mother and the daughter don't want to leave the home. They've been living there, this is paid off. There's no sense to having them relocate and start paying rent somewhere. And so we had to get the office of the Children's Lawyer, which is an Ontario government body which has a mandate to protect the interest of minor beneficiaries. Whatever interest they may have in an estate. We had to get their consent to not only hold the home, but to transfer it into the name, partially a percentage into the name of the minor beneficiary. And so after thousands of dollars of legal fees, by the way, we finally get that. I mean, may I make it sound simple, but it was, you know, a lot of work to get to that point and figure out what the right percentage was. So we finally get there, the home gets transferred. But what this ultimately means is you now have a 10 year old on title. So if the mother wants to mortgage the home in the future, she can't, she can't mortgage it that the consent of the office of the children's lawyer. She can't sell it without the consent of the office of the children's lawyer. And when her daughter eventually turns 18, if her daughter wants to compel her to sell the home to get the daughter's share out in cash, she can. So it's really not a great situation.

Right. I was actually sort of serious in asking that question just as a, as a gut check or a double check, but I think that's pretty clear. So let's just rewind just for a second, all the way back to again, not the question of what a will is, but maybe what are the key elements of the will? You know, like the key, obviously there's an executor and this and that, but like maybe people don't know all this. So what are the key sort of elements that are, tend to be sort of built into these wills.

So the first thing that you would see in a will that's drafted by a lawyer or one of those softwares that puts together wills is the appointment of an executor who should be someone who's for the most part, it's best that they're resident in Canada, responsible and able to do the job. You could also see beneficiary designations of things like RRSPs, tax free savings accounts, life insurance, maybe, maybe not. That sort of just depends on what the plan is. You would see specific gifts perhaps of personal effects or cash amounts. You know, to the extent there are assets that are a bit more tricky to deal with, say you have corporate shares, like the voting shares of a company, a cottage rental property somewhere. You might have specific provisions for those in a blended family situation, you might have separate provisions for the second spouse. And then you have what's called a residue clause. And what residue means is all the money that's left over. All the assets, I should say, that are left over after taxes are paid, estate expenses are paid, executor compensation is paid, and any particular gifts in the will are paid out. So that is the residue. And then we either divide the residue, you know, into shares or it all goes to one person. Or I mean you can do any number of things with the residue, but those are the sections you will typically see.

Okay, got it. And we'll talk a little bit more about key sort of person or people in this mix is the executor, which we'll talk about shortly. Beneficiaries, I think that's Reasonably clear. Just maybe talk a tiny bit about, aside from like your wishes not necessarily being carried out as you'd like, any sort of specific tax or other consequences if you are not controlling this by.

Having a will, well, you don't have any option ability if you don't have a will to do any probate planning.

What's probate and what does that mean?

So probate is actually, it's actually not even called probate in Ontario, but that's the former term and it's sort of the one we commonly use. But probate is a process whereby a will is. A will is valid on death. But most financial institutions and the land registry office in Ontario will not act on the instructions of the person named as the executor in the will unless a court, the court, the local court has basically stamped the will and said, yes, this is indeed the last will of the deceased and the person so named has the authority to act. So unless we have a situation where there's a married couple and everything flows to the surviving space, you know, if you don't have that case, you usually need to get a grant of probate. In Ontario, if there are assets like substantial or not even substantial, but just assets like bank accounts and real estate, when the executor goes to apply for probate, which you need to do with the assistance of a lawyer, the state has to pay what are called probate fees, which are technically estate administration tax, but we'll call it probate fees. And those are levied at 1.5% of the gross value of the assets dealt with in the will. So to the extent there are assets that have flowed outside of the estate, like, you know, an RRSP with a name beneficiary, life insurance with the name beneficiary, a jointly held home, all of that flows outside. But the assets that are actually dealt with pursuant to the will, those are the ones where we levy tax on. And so in terms of probate planning, a common technique in Ontario for business owners or people who own shares of privately held companies is that typically a share in a privately held business doesn't require probate because all you need to do is re register the shares. There's no third party involved, so you get a corporate lawyer to change the share ownership. And so what we typically do is we put all of the assets that need probate in one will for that sort of client. And assets that don't need probate, which include the shares of the privately held business, which is usually a pretty large tax savings.

Yeah, so the idea is maybe we'll dive a little deeper into all the various planning things that we can do without going like too complicated here. But it sounds like the idea is whatever you can. Like, basically the government's taking one and a half percent of your assets when you pass away. So you want to do as much as possible to exclude things that don't need to have a tax levied on them.

Right. Being too cute. Because sometimes being too cute gets into trouble on you get. You walk yourself into other problems, but certainly you don't have a will, you lose the opportunity for, for some of that probate planning. One thing I also wanted to mention about dying without a will is that common law spouses in Ontario, regardless for how long they the couple live together, if there is no will, they do not share in the estate. And to the extent they were a dependent of some kind, and most common law spouses are, well, not most, but many are dependent of some kind. Like they, you know, live rent free in the home owned by the deceased or something like that. There's no provision for them otherwise. And they have to, in order to get money out of the estate, they would need to commence what's called a application for dependent support. So certainly for people out there listening who are in common law relationships, a will is critical.

Yeah. Wow. Okay. So we've sufficiently, I hope, made it clear, you know, if you don't have one, get one. This applies to everybody. Whether you are a multi millionaire or a not, it doesn't really matter. There's just lots that you would prefer to control on your own. So let's maybe then now talk about, okay, now that you're going to go get, you're going to get one prepared, some of the key elements you want to do and plan to have the best outcome possible. You've talked a little bit about that with the probate planning, but we'll touch on that again. But even starting from the executor, and maybe we'll just have a tiny sidebar on what this executor is going to have to do. Because, you know, the first thing is, okay, we got to choose an executor. So everyone, and not everyone, I see a lot of situations, I'll just choose my spouse will be the executor or whoever. Maybe people should get a vision from you or a picture from you rather of what this person or people, I guess person normally is actually going to have to do for the next year or more when they take on this executor role. Or, or the role is thrust upon them. More, more likely.

Being an executor is a big and thankless job, Brian. I know that you can attest to that. The big picture, what the executor does is they locate all the assets of the estate, they determine their value, they secure the assets, they hire, retain a lawyer, an accountant, the lawyer to help apply for probate, the accountant to do the deceased tax returns. And then, you know, they, once they've obtained the probate, they start liquidating assets and distributing them pursuant to the terms of the will. But that's an oversimplified version of what an executor does because especially in the early days of the appointment of an executor, when someone dies, the executor has to cancel subscriptions, cancel the phone, cancel the cable subscription, make sure that there's no pre authorized charitable donations that are continuing, cancel newspapers, they have to go into the home, if there is a home, and inventory the assets, change the locks. If they're worried about other people having keys and worrying about things going missing. If it's winter in Toronto, arrange a snow removal service, call the property insurance and change it to vacant. Like the list of tasks, you know, apply for the CPP death benefit. Like the list of immediate tasks is really large. And you know, for the most part though, a lawyer like me can assist in telling an executor what they have to do. We can't do those things on behalf of the client for the most part because, you know, the Bell Canada wants to speak with the executor themselves and not the representative. So the, especially in the early days following a death, there are the tasks of the executor are many.

Yeah. So I'm living through this right now. We help families. The interesting thing is my business over here, our business over here is actually set up really well to do a lot of this work. We tend to do it almost a hundred percent of the time for people who are alive and we can't actually be executors for clients due to conflict of interest and whatnot. But this is the first time with full disclosure that I've had to take on this role and do this. And Jessica, you've summarized it very, very well. I mean, it's unbelievable. You're basically taking on the financial life of another person, family, whatever it is, everything you have to almost do for yourself while the assets are still there. You know, as you say, deal with the house. And again, maybe you can talk about this too. Look, I have to Go buy the house every week and make sure it's, it's all fine. Yeah, I had to meet the hot water tank guys because there was a leak, you know, a few months back. It's really amazing, like the, the scope of, of what you have to do. So my point is you have to appoint somebody who can take care of this stuff because as you said, you can't really appoint someone else or hire someone else to do it for you because the banks only want to talk to you and it's an amazing amount of work. So anyways, just reiterating what you've said.

Yeah, I mean, and some, you know, a lot of my clients now appoint for this very reason and because maybe their children don't live in Canada, appoint trust companies to do some of the work, which is fine. I mean, that's an expensive proposition. But you can appoint a professional to do this. It's just a matter of the fees they charge versus having someone do it. And I mean, either way, an executor is entitled to be paid for the work that they do. But trust companies, there's like, very little flexibility. It's based on a sliding scale of percentages and subject to a minimum fee as well. But going back to who to appoint as an executor, I mean, I usually, when I'm having a client meeting for the first time with someone new or even updating a will, the, the answer of who in the family or which person in the light in your life, to a point, is largely dependent on what the terms of the will say and what the relationships are like between the people who are, you, are. You are leaving assets to. So, you know, for instance, in a situation, and I see a lot of this sort of planning, that blended family planning. So you have a second spouse and children from a first marriage, let's say, and the person making the will wants to make sure that their, their new spouse is provided for for their lifetime. So you set up what's called a spousal trust, let's say, and the spouse gets all of the net income from the trust and, you know, maybe some amounts of capital, and then when that spouse dies, everything reverts back to the children. Well, in that case, if you have a second spouse who doesn't get along with, with the children from the first marriage, those children should not be the executors because they will be the ones managing that spouse's trust. And when he or she requests the money to, you know, let's say, fix the roof or update the kitchen or whatever it is, that person has to rely on the kids to act reasonably. And they might, their ability to act reasonably might be clouded by personal feelings.

Yeah, it's very important role. So. Yeah, that's good, good, good advice. Let's talk a little bit about kids now. Maybe like guardianship, minor children. To me that's financial stuff is important. But what happens with your children? Probably more important to everybody than anything in life. So how does the will help take care of that?

So typically the will would, would say that, you know, if both parents are gone, everything gets divided, let's say equally, we'll say for the sake of this discussion, equally amongst the kids. And typically in a lawyer drafted will, you would have that money held until some later time in a trust. So maybe, and I typically suggest a tiered distribution model. So maybe they get some third or some percentage of what they're, what's in their trust at the age of, I don't know, 21, 22, some, some further male, maybe a further third at, you know, some other age, like 25 and maybe the rest at 30. Though I have many clients where we sort of move those ages back because they're worried about the ability of their kids to manage the money themselves throughout that period where the money is held in trust, whoever the executor is, and by default the trustee of those funds can make distributions to the children for anything they need. You know, we typically, they're typically drafted these trusts and with very broad language. So to allow the child to use the money for their, you know, furtherance in life, education, whatever it is, but they're not managing the underlying capital until they receive the capital distributions. And this is one of those situations where I might, when I'm meeting with a young family, I might wait until we get to the discussion of what the trusts are going to look like until we talk about who's going to be the executor. Because who is going to be the person who manages these trusts in the long term? Sometimes, not to get too complicated, but we can separate out the role of executor from the trustee of these trusts so that maybe there's someone better suited in the role of executor, but that person doesn't know the kids very well. And so maybe somebody else would be better suited to manage these kids trusts after all of the executor functions are complete.

That's from the asset perspective. What about like who takes care of the, of these clients?

So again, typically we put a, what's called a guardianship appointment in a will. But there's a common misconception that you do this and that's fine, it's perfect, it's done and it's binding. The truth is those appointments are only in Ontario, binding for 90 days. So it's a temporary custodial appointment. And then ultimately, whoever is named, if they want to be, become the children's guardian, if the kids are under 18, they can hire a lawyer and bring a court application to be named as the formal custodian of the children. Or it's actually called decision maker or some sort of term like that. But if for some reason there are other people who think they are better suited to the role, or perhaps this person has moved away or is no longer a good fit, somebody else can be appointed. The court, a court will appoint the role of the custodian to the person who is, you know, whatever's in the best interest of the children. So a good example is sometimes do wills for people where they're. They have no babies and they appoint somebody to be the guardian of those kids. It could be the case that if this, if both parents die before the kids are 18, but let's say it's 16 years later that that person that they've named has moved away to another country and the kids are firmly implanted in Toronto and want to stay in their community, somebody else could easily be appointed and a court would likely find that that other person is a better choice than the one the parents put in the will 15 years ago.

Sorry, first of all, let's go back to the beginning of this conversation all the way. What if there's no will and there's minor kids who, you know, who becomes their guardian? And what if there are minor kids and I don't know even in the will, if it's, if there's guardians identified or whatever and they don't want to do it. Like what happens in those two scenarios?

Someone just has to step up and say they're gonna, they're gonna be applied to be the guardian. I mean, unfortunately, I was involved in a horrible case many years ago where we had competing claims. You know, like both parents had died under tragic circumstances and wife's family and husband's family were both fighting with each other for who was going to become the guardian. I mean, thankfully in that case, it got, it's settled before a judge had to make a determination. But what would happen is that you would have two opposing applications, they'd be heard at the same time, and a court would have to decide Based on a whole bunch of evidence and interviews with the children done by, you know, child services who, which party was in the best was. Was best suited to look after the kids.

Okay, serious stuff. And almost to finish the topic on wills and you touched on this already when we talked about probate and second primary and secondary wills, but or probate planning, I should say maybe need top one, two or three things that people should be thinking about or do. Well first of all, people should probably be working with a lawyer like yourself to do this. But people those are preparing a will to think about to maximize. From a legal perspective, I guess there's lots of different ways to maximize with you know, financial and insurance and all that stuff. But putting that aside, maximize the end value in their pockets of their heirs, I guess, you know, if they pass away or when they pass away.

I mean aside from the probate fee planning that I typically advise, like making sure you have up to date beneficiary designations, I think the best way to maximize the estate is to make thoughtful decisions at the time of making the will so that the beneficiaries have less to fight about. So if you're going to appoint all three kids as executors, have a majority clause so that if one is being obstinate or there's a falling out, at least two can carry forward with a decision. You know, the things like that cost end up costing a lot of money to litigate over things like the family cottage. And I know I feel like it's so over spoken about topic, but I can't like especially in Ontario, given the cost of Muskoka real estate and often beneficiaries, if they don't inherit the cottage from the estate, don't have enough money to go out and buy their own cottage. And so being thoughtful about how you're going to set your kids up in that case for success, giving them a roadmap. I usually put in provisions to say okay, if all the children want it, they can have it provided they've entered into a co ownership agreement to get how they're going to share it if one wants out, how are we going to value it in order to make sure that that one child who's not getting it is getting an equal share of the estate. So you know, like really, really detailed and granular sort of instructions I think are super important for assets where there's going to be fighting. Same with like if someone's a business owner, maybe they've done a freeze and they're holding voting shares, you know, Being thoughtful about where those voting shares are going to go to eliminate again, the fighting between, and often unfortunately, between the children. So those are ways to really maximize value, is to be thoughtful about how to avoid the conflict at all.

I love it. Greatest insight, I think, from, you know, I often think to maximize, we got to, you know, do something financial or move something around. I love that. That's great insight. Just make sure everything is clear, organized, plan ahead for potential conflict, and try to solve it before it starts. And that'll save you time, headache, legal fees. And that's good. I like that. Okay, so finishing the topic of wills, I guess the last question then is, okay, great. So we do a will, we write it down, we put it, we put it in the drawer, we're good forever, right? What?

Or, or, no, not so much so. I mean, wills need to be evaluated all the time. I mean, we, I tell people to take out their will every three to five years, which I know doesn't always happen, but I mean, some of the, the key things to think about, sort of like life cycle events. So has there been additional birth, you know, have you had another kid or do, you know, have grandchildren and want to somehow include them? Have you separated from your spouse? I mean, legally married spouses who separate if they haven't gotten to three years between the date of separation and death still are entitled to a share of the estate. So have you separated? Have you remarried? Are you now living in a common law relationship and now have obligations to a common law spouse because they're, and because they're in some way a dependent on you? Have the, has the asset base changed? Have you purchased a cottage? Have you sold a cottage? You know, have you done an estate freeze? All sorts of these life events are sort of what would trigger a change to the will. Has a beneficiary moved out of Canada? Has an executor moved out of Canada? So that is I, you know, I usually give a checklist of, in my final reporting letter to clients and like, these are the things you should think about coming back to me to speak to me about.

Okay, got it. So the will is do it. That's the most important thing. But then you also have to revisit it every, you know, when there's significant.

Events and don't lose it.

Well, don't you keep a copy of it for a client?

I mean, so it depends. So some lawyers keep original wills for their clients, but storage is expensive. And so I know many state lawyers who don't. And I only keep sort of some of them now. But, you know, often clients under your.

Mattress at home or something. These things.

Or do not, do not put in a safety deposit box. Because if it's in a safety deposit box, you can't access the safety deposit box or hate the will.

Right.

So put it somewhere safe at home and make sure the people who need to know where it is need know where it is.

Right. Okay, so that's good. That's wills. That's what happens. That's what you want to prep for when unfortunately everyone is going to at some point, pass away. Now let's shift to powers of attorney, which is sort of like what do you do when you're alive to make sure that your wishes will be taken care of if for some reason you can't take care of them yourself? If I've got that definition right. So, yeah, maybe explain to us what powers of attorney are. The different types, why. And you know, and then we'll go from there, I guess.

So there's two types of powers of attorney in Ontario. The first is the power of attorney for property, which is a document which governs all of one's assets. So it appoints whoever it is you appoint to manage one's financial assets while they are alive, but unable to manage those assets themselves, either because they're incapable or have chosen to give the power of attorney to someone to start acting and then. And the person so named can do anything that the, that the person who's appointed can do with their assets, except for make a new will. So it's a pretty big job. And then there's the power of attorney for personal care, where you appoint somebody, some people to make your healthcare decisions if you're alive but unable to do it. And in some ways the power of attorney for property in particular, I mean, the will's important, so I don't want to shortchange the will. But in some ways the power of attorney for property is even more important because unlike a will, if you don't have a power of attorney for property and one becomes incapable, there's no easy mechanism at law to deal with it. The mechanism is a full guardianship application where someone has to be appointed as the guardian for property by a court easily. Those applications, even if they're not contested and not complicated, easily run 7,500 to $10,000.

What about timing? How long does that take to go.

It or takes months. You can maybe get an urgent temporary appointment, but months. You need capacity assessments and consent from, from, you know, the next of kin. So it's like powers of attorney are a few hundred dollars. You can even print them off of the ministry and the Attorney General's website. They're not quite as robust as the ones I do, but better than nothing, right?

Wow. Yeah, for sure. Okay, so, and let's take one at a time, I guess, however, and you've explained it, but what should people be thinking about again when they're thinking about who's going to have that power? What do you need to build into the power of attorney? Or is it as you say, almost sort of cookie cutter, but just gives that person the ability to step in when unfortunately someone can't do it themselves type of thing, or if they want them to. As you say it, a lot of.

Them are pretty cookie cutter for the most part. Sometimes they're a little bit fancier if we have certain restrictions in it. Or sometimes I, you know, because I again, I do a lot of blended family planning. Sometimes I include clauses to deal with, you know, if a second spouse is living in the family home. Well, you don't want a situation where, you know, dad has to move into long term care because he's got health challenges and he's lost capacity and the kids are saying, okay, well then we have to, we're selling dad's home and not giving sufficient notice. And so sometimes they build in provisions around that, but otherwise they're very straightforward documents. And then in terms of who you appoint, it's sort of a similar analysis to the executor. And often it's the same person you want it to be. Someone who's not necessarily financially savvy, but it's smart enough to know when they need to get advice and who to get that advice from has the time. It's paying someone's bills and managing their day to day affairs is a lot of work. And making sure that the person's named is actually resident in Canada because, because of the, the large interaction the named attorney will have with the financial institutions, it's a huge mess when the person is not resident in Canada.

Yeah, well, I was going to ask you because you mentioned that too with the wills and executor. So why, why is that? Just remind me.

There's sort of different reasons. I mean, one, firstly it's, it's, you know, often the executor or the power of attorney, the attorney for property has to attend at the bank to do something, right? To open the account, to request funds. So someone who's out of town, it becomes logistically very challenging on the Executor side, if you have a non resident executor and the will creates a trust, that trust will be deemed resident wherever the executor lives. We don't want to do that. And then for the attorney for a power of attorney for property, if the named attorney doesn't live in, in Canada and whoever the individual's wealth manager is, if they're not licensed in the US like or the other in any jury, another jurisdiction, a non resident can actually give trading instructions on a Canadian account.

Right. It's critical but pretty straightforward. You want to just talk a little bit about the power of attorney for personal care or health. I mean you've, you've explained at a high level what it is, but dive a little bit deeper. What, what are you, what are you laying out in those types of documents?

So in the power of attorney for personal care that's where one can, you know, people often say they, they want to do a living will. This is where you can put those sort of long term care hell, end of life, you know, wishes, they're not binding but it is instructive to whoever's name they have a duty to follow the incapable person's wishes to the extent they can. What's crucial about it is so unlike a power of attorney for property, if you don't have a valid power of attorney for personal care and there's an accident and someone ends up in hospital and can't give consent, there's legislation in Ontario that allows the spouse, and if not the spouse then like the next of kin to make decisions in a healthcare facility. So you're sort of covered there, but what you're not covered from is, is so when you're relying on the legislation, it says that, you know, children for instance, if there's no legally married spouse or they're, they're deceased, you know, are on equal playing fields. So if you have kids who have very different values as it relates to healthcare, right. Maybe you have one child who doesn't believe in vaccinations and another one who does or you know, because of religious reasons doesn't believe in certain medical interventions and the other one does like they're not going to be able to agree and a healthcare facility isn't going to take one's instructions over the other. We're going to end up in a case where the healthcare like there's something called the consent and capacity board has to get involved. So to the, it is better to just appoint the individuals. And again when people have a lot of People want to appoint their children. Maybe they have three kids. Again, I always put in a majority clause in those documents so that hopefully we can get two on the same page to make a decision.

What if there is only two, though? Because you're saying there'll be some wishes put in there or how or be.

Some wishes which will help. And hopefully, even if they've appointed two kids, hopefully they've done that because they've had a conversation with a lawyer who said. And they've talked about whether or not the kids can get along and whether their values are aligned.

Right. Okay, gotcha. All right, well, so closing out on wills and powers of attorney, anything we haven't covered, or any sort of final messages to folks whether they don't have them, do have them. What do we want to leave people thinking about here? And sorry, this may be not. Not the most uplifting, hilarious, fun topic to cover, but I would say it ranks pretty high in importance in my view.

I agree. I think what's important for people is if you don't have a will, do one. In most cases, something is better than nothing. And, you know, not every individual needs a complicated will sometimes. I mean, I know there are services out there, like, especially now, there's. With new platforms coming online all the time, there are ways to do a simple will. And so if the cost is the issue, at least do a simple one with one of those services. And if you have wills and they're outdated, it's time to look at them and just make sure that they still work, given your circumstances.

Perfect. Okay, so last question for you. This is just for fun, but, you know, for those who've listened to my podcast know, you know, our theme around here is your wealth unlimited. It's also wealth Hard now, by the way, but your wealth unlimited, because we help families with really whatever they need on all facets of their financial lives, including investments. So just for fun, I always like to ask my guests at the end, you know, you're a lawyer, you've done amazing. You're obviously helping families. But if the opportunities in the world is unlimited and you could do or be or be doing anything you want, unlimited in anything, what might that be for you?

Oh, that's such a hard question. What would I be if I could be anything? I would've probably have become an accountant, quite honestly.

Come on, the lawyer wants to be an accountant.

Yeah.

Why? Why?

I mean, part of the reason I like this, what I do, is it's sort of a bit. It's numbers heavy. It's a bit about solving a puzzle. And you know, tax accountants do that all the time. So if I, if I could go back and do anything, I probably would have become a tax accountant.

Okay. Amazing.

Probably not as exciting as what some other people say.

That's a great one. All the accountants listening are like, yeah, absolutely. Some of them want to be lawyers too. Anyways, Jessica, thank you so much for your time. Thanks for talking about, as I say, this super fun, uplifting topic. Very serious, very important. This is the sort of stuff we help our families with by engaging with experts like you and really appreciate your time. Thanks so much.

Thanks for having me.

Okay. See ya.

The unlimited podcast is hosted and produced by Brian Ginsler and is edited and mixed by myself, David McMillan. This podcast is not to be taken as investment advice. If you like what you heard, don't forget to rate the podcast and follow us on Social medianslerwealth. Thanks for listening and see you next time. Sa.