Have Your Current Will and Powers of Attorney Reviewed
I recently received an email from a client with a question that I am often asked. I had recently met with Steve (not his real name) at my law office in Stittsville near Ottawa regarding his role as executor of his mother’s estate. Steve will be moving away from Ottawa at the end of the summer and he wondered if he should sign a new Will and Powers of Attorney after he gets settled in.
I explained to Steve that Wills and Powers and Attorney prepared and validly executed (signed) in another jurisdiction are generally valid in Ontario. However, for Wills and Powers of Attorney prepared and validly signed in Ontario, a letter of opinion from the other jurisdiction will usually be needed to confirm that the documents were drafted according to that jurisdiction’s laws and are considered valid there. The letter of opinion would typically only be needed if the documents, such as a POA, were going to be used.
As we are licensed to practice in Ontario, we cannot advise as to the laws in any other jurisdiction. I recommended to Steve, as we do to clients who have moved (or who are planning to move) out of Ontario, that he ask a lawyer in the new location to review his Ontario Will and Powers of Attorney and let him know if his Ontario documents can be used or if new documents should be prepared.
I’m going to keep my home in Ontario….Does this change anything?
Steve told me that he will be renting out the house that he owns in Ottawa as he plans to move back in a few years. He’s not sure whether he will rent or buy in the new location. I explained that, generally speaking, real property is governed by the laws where the property is located. All other assets (called movables) are generally governed by the laws of the jurisdiction where the owner is a resident at the relevant time (this could be death or when incapacity occurs).
Since Steve will continue to own real property in Ontario, his Ontario Will might be enough to deal with the Ontario property. However, if he signs a new Will in the new location, he need to be careful that his new Will either includes the Ontario property and revokes his Ontario Will or the new Will allows his Ontario Will to continue to be valid but only for purposes of dealing with the Ontario property.
Steve could have two Wills in effect at the same time – one in Ontario dealing specifically with the Ontario real property and another in the new jurisdiction dealing with all of his other assets including any real property there.
I explained to Steve that if at his death he only had one Will which was prepared and signed in the new location, if he still owned the Ontario property, his Will would have to be ‘resealed’ in Ontario. Resealing is the process of having a judge in Ontario confirm the probate that was granted in the new jurisdiction. A grant of probate given by a court in another jurisdiction is not enough to deal with real property in Ontario.
If you have recently moved to Ontario or are planning a move out of Ontario, make an appointment to meet with one of our lawyers today. We will review your unique situation and advise you how best to provide for your loved ones.
Reproduction of this blog is permitted if the author is credited. If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information. Please consult a lawyer or other professional to determine how the information in this blog might apply to you.
Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.
