If you live in Canada and hold things like bank accounts, real estate, investments or other valuable property, it is important to have a will. A will allows a trusted friend or relative (the Executor) know how you want those assets distributed after you pass away. Furthermore, if you have children, a will allows you to state who you would want to care for your children in case both parents are unable to do so (the Guardian).
A will is different from a Power of Attorney. If you are still alive but for some unfortunate reason are not able to make decisions for yourself, a power of attorney allows a trusted friend or relative (your Attorney) make those decisions on your behalf.
But what if the people you trust to manage your estate or take care of your children do not live in Canada? You can still appoint those people to act for you; however, Ontario law imposes certain additional requirements with which you will have to comply.
For wills, Ontario law requires Executors who are not Canadian residents to provide a deposit for an amount which can be up to double the value of the estate. Since an estate can include real estate, cash savings, and other valuable assets and investments, this amount could be very high. The deposit is primarily to ensure that any estate or other taxes owing are paid before the assets leave Canada. If the will includes a trust, appointing a non-resident can also attract various tax implications since the trust residence depends on the trustee’s residence.
A power of attorney for personal care allows your attorney to make health related decisions for you, while a power of attorney for property allows that person to manage your assets. There is no legal requirement that an attorney for personal care must be an Ontario or Canadian resident; however, appointing a non-resident can bring practical complications. For example, a non-resident attorney for care will find it difficult to handle immediate communications with doctors or family members in case of emergency. It could also be costly for a non-resident attorney who may have to miss work in their home country and incur travel expenses. Furthermore, there are laws a regulations which restrict Canadian investment advisors from taking instructions from attorneys for property who are not resident in Canada.
When it comes to guardianship of children, appointing a guardian for your children in your will does not last forever. It expires 90 days after the appointment becomes effective and the temporary Guardian has to apply to court within this time-frame for a permanent order of guardianship. The court will assess the application while taking into consideration the best interests of the children. If the person who is applying is not a resident of Ontario or Canada, the court might determine that moving away from the Canada is not best for the children, which could result in that permanent order being rejected.
Deciding what is best for your particular situation is a complicated matter and the lawyers at Grinhaus Law Firm will navigate you through this difficult process in order to ensure that your children and assets are protected as you so desire. We have the experience and expertise necessary to help you. For more information on this topic, feel free to call or email us to see how we can help.
PLEASE NOTE: THIS IS NOT INTENDED TO BE LEGAL ADVICE AND SHOULD NOT BE RELIED ON AS SUCH. IT IS IMPORTANT THAT YOU CONSULT WITH A LICENSED PROFESSIONAL.