Wills, Trust & Estate Planning
Wills & Trusts Attorney in Winnipeg, Manitoba
Why do I need a Will?
It’s important for all people to have valid will and enduring power of attorney as part of their overall estate plan. When a person dies without a will, his or her estate, which may include many different kinds of assets and property, will be divided according to Manitoba’s intestacy laws. Intestacy laws are not only inflexible, but they also determine who is entitled to share in your estate. As a result, the people to whom you wish to leave your property may receive less than you intended or, in some cases, may receive nothing at all. This may become a huge problem when the young children of a deceased person have greater needs than other next-of-kin who may be entitled to share in the estate by virtue of intestacy legislation. In addition, without a valid will, there is no executor or representative to administer your estate. In these situations, your next-of-kin or a creditor of your estate may be entitled to apply to court to be appointed to wind-up and administer your estate. This may mean that someone you would never have chosen to deal with your property will be left in charge of your estate.
These problems can be avoided by consulting a skilled Winnipeg wills and estate planning lawyer who can ensure you have a valid and properly constructed will that incorporates appropriate estate and tax planning considerations into your will.
Why do I need a Trust?
Essentially, there are two broad categories of trusts: (1) inter vivos trusts which are created by a deed or instrument during one’s lifetime; and (2) testamentary trusts which are created under one’s will and come into being upon death of the testator. A trust involves a tripartite relationship between the “settlor” who settles the trust property; a “trustee” who administers the trust; and a “beneficiary” who enjoys the fruit of the trust property. In essence, a trust is a ‘relationship’ between a “trustee” that holds legal title to the trust property and a “beneficiary” who holds beneficial interest in that property. The trust property is held in the name of the trustee but the beneficiary is entitled to receive the benefits of the trust property. Because the beneficiary never holds legal title to the trust property the trust property will be protected from creditors of a beneficiary and is an excellent planning tool to provide for a spendthrift beneficiary or beneficiary with special needs. A trustee can be either an individual or a trust company or both. All trustees have a fiduciary obligation to the beneficiaries of the trust and must act in their best interests at all times. The testamentary trust provides for many estate planning opportunities.
There are many different reasons to establish a trust including:
- To avoid expensive probate fees and public disclosure associated with probate of your estate
- To manage finances for your heirs, and to protect assets from individuals who are incapable of managing their own financial affairs
- To protect your assets from creditors
- To split your income with family members, both while you’re alive and after you’ve passed on
- To protect your assets in the event of a marital breakdown
- To preserve a right to social assistance payments
- To defer capital gains tax
Why should I hire a Winnipeg Estate Planning Attorney?
Hiring a Winnipeg estate planning lawyer is the best way to ensure that your wishes will be honored and upheld regarding how your property will be handled after your death. While it is possible to create a valid will and/or trust without employing the services of an attorney knowledgeable in trusts and estate law, you should know that there is a significant amount of estate litigation concerning both the validity of wills & trusts and the meaning or interpretation to be given to wills and trusts. While it is usually easy for the courts to ascertain the meaning of a will or trust prepared by a lawyer, it may be very difficult for the courts to interpret wills and trusts that are prepared by people who have not been legally trained in these matters. This reason alone is usually enough to convince anyone to hire a Winnipeg estate planning attorney who has experience drafting wills, trusts, and other important estate documents. Not only can a skilled estate planning lawyer ensure that your wills and trusts are customized in a way that reflect your specific needs and wishes, but he can also make sure that the specifications outlined in the will or trust are honored and upheld!