Have you been appointed as an Attorney under a relative or friend’s Power of Attorney and as an Executor under their Will?

Given the similar nature of these roles, in many cases, the person named as an Attorney under an individual’s Continuing Power of Attorney for Property is also named as the Executor under that individual’s Will.

The Attorney often steps into their initial role when the individual, known as the “Grantor” of the Power of Attorney, loses capacity to manage their assets, which in some cases, may coincide with the failure of the Grantor’s health, and signify that the Grantor’s death is forthcoming.

In such circumstances, the Attorney may wish to take steps which will ultimately facilitate the expeditious and cost-effective administration of the Grantor’s estate after their death – an action that is sometimes explicitly authorized in the Grantor’s Power of Attorney.

While an Attorney’s primary obligation is always to support the needs of the Grantor and the Grantor’s financial dependants, an Attorney in this situation may consider taking the following steps to prepare for their role as Executor:

  1. Take an inventory of the Grantor’s assets;
  2. Prepare a list of the beneficiaries of the Grantor’s estate, confirm whether each is living, and collect their contact information; and
  3. Where appropriate, take steps to make pre-emptive gifts or transfers of property into joint names with beneficiaries that are consistent with Grantor’s Will.

Given the Attorney’s fiduciary responsibilities, this final step (while it can offer tax-saving opportunities and other advantages) should not be taken without thorough consideration of the circumstances, and competent legal advice. At Mills & Mills LLP, our estate lawyers can help you navigate your role as an Attorney for Property and provide you with practical advice to simplify your transition into the role of Executor. To learn more about how we may be able to assist you please reach out to us online or by telephone at (416) 863-0125.

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Toronto, ON M4V 1L5

Phone: (416) 863-0125

Fax: (416) 863-3997

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