Archive for the ‘Wills, Estates and Trusts’ Category

BC Court Weighs in on Wills Variation Standing for Adopted Children

By Joni Metherell
In the recent decision, Boer v Mikaloff, the BC Supreme Court was faced with an interesting interpretation question under the relatively new Wills, Estate and Succession Act.

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How Long Does Probate Of An Estate Take?

By Vanessa DeDominicis
“How long does Probate take?” isn't an easy question to answer as there are a myriad of factors that can delay or lengthen the Probate process.

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Estate Planning for your Pets

By Vanessa DeDominicis
Pets are like family. How do we provide for them after we are gone?

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Joint Executors of an Estate

By Vanessa DeDominicis
Oftentimes, my clients will appoint joint Executors in their Wills. This means they are appointing two people to jointly administer their assets and apply for Probate.

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Insolvent Estates

By Vanessa DeDominicis
An insolvent estate is not necessarily a bankrupt estate.

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When Should I Review My Will?

By Vanessa DeDominicis
If you have an existing Will, that’s a great start. However, as your life changes, so will your estate planning needs.

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Life Insurance Trust Declarations for Your Spouse and Child

By Vanessa DeDominicis
Many people have life insurance, and naming a beneficiary or beneficiaries on that life insurance policy is usually enough.

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Representation Agreements vs. Health Care Directives

By Vanessa DeDominicis
A Health Care Directive allows you to state your decisions in writing regarding your future healthcare treatments in the event you are unable to communicate them.

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Representation Agreements and the Assisted-Dying Legislation (Bill C-14)

By Vanessa DeDominicis
A Representation Agreement is a legal planning document which can be used in British Columbia to provide your named representative with the authority to make health care decisions for you if you are unable to do so.

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How Old Do I Have to be to Make a Will?

By Vanessa DeDominicis
Everyone should have a valid Will in place. If you die without a Will, your assets may be administered by the Public Trustee and distributed in a manner contrary to your wishes.

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Advertising for Creditors of an Estate

By Vanessa DeDominicis
Why is it important that an Executor advertises for creditors of an Estate?

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Guardianship and Your Will – The Toughest Clause of All

By Vanessa DeDominicis
Deciding who will take care of your children in the event that you and your spouse perish is by far the toughest decision couples have to make when it comes to deciding to do their Wills.

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Can A Beneficiary Refuse An Inheritance?

By Vanessa DeDominicis
Seems unlikely, right? But it does happen – sometimes people don’t want to inherit money for a variety of reasons.

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The Right to the Spousal Home in an Estate

By Vanessa DeDominicis
If a person passes away without a Will, there is no longer a life estate granted to the spouse they leave behind in the spousal home.

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Passing of Trustee’s Accounts and the Duty to Account

By Vanessa DeDominicis
An Executor/Administrator/Trustee (“Personal Representative”), must be ready at all times to account for the trust property.

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Don’t Leave Your Estate Planning Until the Last Minute…

By Vanessa DeDominicis
Part of my practice is attending care homes, hospitals, client’s homes and hospices to prepare for end of life matters – frequently far too close to the client’s end of life.

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Leaving a Charity the Gift of Life Insurance…

By Vanessa DeDominicis
Not only does life insurance enable you to benefit a charity after your death, but you can also receive substantial tax savings, depending on how you structure your gift of life insurance.

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Charitable Gifts Made Under a Power of Attorney

By Vanessa DeDominicis
A Power of Attorney, if used carefully, is a very important estate planning tool.

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The Effect of Marriage or Divorce on Your Will

By Vanessa DeDominicis
The Wills Estates and Succession Act “WESA” is now a year old. Its sweeping changes to the law in relation to Estate Planning and Estate Administration are still being discussed. One important change is the effect that spousal relationships

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Major Changes To The Income Tax Act: Time To Update Your Estate Plan

By Melodie Lind
Back in 2013, the Department of Finance proposed some changes to the Income Tax Act and asked for public input on those proposed changes.

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What Happens If You Don’t have an Enduring Power of Attorney?

By Vanessa DeDominicis
When I meet with my clients and explain what happens if they lose capacity and do not have an Enduring Power of Attorney in place, I am frequently met with a look of terror, the colour drains from their face and they say something to the effect of

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The New Wills Estates and Succession Act “WESA” (which came into force March 31, 2014) and Undue Influence

By Vanessa DeDominicis
WESA introduced a shift in the onus of proof in relation to undue influence challenges to wills in some cases. Section 52 of WESA places the onus of disproving undue influence to the person who has received the gift under the will

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The Will That Doesn’t Need Probate

By Vanessa DeDominicis
“My Friend told me that she has a Will that doesn’t need Probate. Can I get one of those please?” Ahhhhh the Will that doesn’t need Probate! Wouldn’t that be nice? This is something I am frequently asked about by clients

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The Importance of Opening the Lines of Communication with Your Executor

By Vanessa DeDominicis
My practice involves both the planning and the administration side of Estates. This gives me a unique insight into how important it is, not only to have an excellent written estate plan (which includes a Will, Trusts, potentially an Affidavit, and the important incapacity planning documents as well, such as a Power of Attorney and […]

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Executor’s Duties, Post WESA

By Vanessa DeDominicis
What happens if you are appointed Executor? In British Columbia, the new Wills, Estates and Succession Act (“WESA”), which came into force on March 31, 2014, governs what happens when a person passes away. If you have been appointed Executor in the Will, there are a wide range of obligations if you accept the position […]

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The New Wills Estates and Success Act “WESA”

By Vanessa DeDominicis
The substantive law is changing with regard to the presumption of survivorship. WESA contains new survivorship provisions in relation to joint tenancies. There will no longer be a presumption that when people die in circumstances in which it is not possible to determine who died first, the younger is presumed to survive the older (pursuant […]

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The New “WESA” And The Curative Provisions – Be Careful What Texts You Send Or “Notes” You Write On Napkins!

By Vanessa DeDominicis
The new Wills, Estates and Succession Act ("WESA") has given the Court a new power to “fix” or “correct” a problem where a Will does not comply with the formal rules of execution. In its broadest interpretation, the Court may consider almost any evidence of a person’s intention and give effect to it as though it is a person’s valid Will.

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Estate Planning – “Should I Appoint A Professional Executor/Trustee In My Will, Or A Close Family Member/Friend?”

By Vanessa DeDominicis
An Executor/Trustee has a wide range of obligations and responsibilities to fulfill. When doing your Estate Planning and choosing an Executor/Trustee, you have a number of important considerations to keep in mind. In a nutshell, the choices available are: Corporate Trustee (like a Bank or Trust Company), a family member/friend (or more than one, named as Co-Trustees), or another willing professional you know, such as your Accountant or [...]

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Assessing Charities: Cause and Outcome

By Vanessa DeDominicis
Your Estate Planning process is underway. You know that you want to provide for a charity in your Estate Plan, but you have no particular affiliation with any charity. You do, however, have one criteria... you want to make sure that your dollars end up with a charity that uses it in the most efficient manner, making the best use of your hard earned legacy. How do you decipher which charity gets the most dollars to its end beneficiary? [...]

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Advance Health Care Planning and The Ministry of Health’s “My Voice” Pamphlet

By Vanessa DeDominicis
I have had several clients bring me a “My Voice” pamphlet for discussion during their estate and incapacity planning appointments with me. These pamphlets were given to them during an assessment they had had with Interior Health. They are full of insightful and valuable information about how to express your wishes for future health care needs, either in the event of ‘disastrous incapacity’ due to an accident, or [...]

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The Dangers Of Joint Ownership With Your Adult Children

By Vanessa DeDominicis
Probate fees of 1.4% of the gross value of assets located within British Columbia and passing through an estate in British Columbia are payable to the BC government at the time an estate is probated. In an effort to avoid these fees, people often transfer assets into joint tenancy with one or more of their children. Trying to avoid probate fees may seem like a good idea, but joint ownership can create a whole host of problems for people, as [...]

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Department Of Finance Consults On Proposed Changes To Taxation Of Trusts

By Melodie Lind
In the 2013 Federal Budget, the Department of Finance announced that it was going to consult with the public on proposed changes to the Income Tax Act regarding the taxation of certain trusts and estates.

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Inheriting Property Jointly With Other Beneficiaries And The Importance Of Co-Ownership Agreements

By Vanessa DeDominicis
Whenever property is ‘co-owned’ by anyone other than a husband and wife, I always strongly recommend that a Co-Ownership Agreement be put in place. Family cabins at the lake, Big White ski condos, property inherited by estranged beneficiaries and even residential homes where parents are on title with their child/partner in a two-suite home, are all VERY common scenarios where title can potentially be held by several people. These [...]

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Probate Fees: What Is The Cost And When Are They Payable?

By Melodie Lind
British Columbia’s Probate Fee Act sets out the rules for the rate of probate fees payable on a deceased estate and when they must be paid. As a general rule, probate fees are equal to approximately 1.4% of the gross value of a deceased’s estate, calculated as of the date of death, and must be paid before the Court will issue a Grant of Probate. There are some circumstances, however, which reduce the amount of probate fees [...]

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Joint Tenants vs. Tenants in Common. What Is The Impact On Your Estate Plan?

By Vanessa DeDominicis
In my initial estate planning meeting with clients, one very important question that I ask is “Do you hold your real estate as joint tenants or tenants in common?” I am often answered with “We are both on the title” which doesn’t really answer my question. The reality is, lots of spouses have owned their principal residence for many years and can’t necessarily remember how they hold title.

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Estate Planning for the Family Cottage

By Melodie Lind
One of the quandaries many people face when making an estate plan is what to do with the family cottage or vacation property. The family cottage is often a beloved family asset – a place where several generations have shared many happy memories – and there is often a strong wish to keep the cottage in the family. The best way to accomplish this is one of the more challenging issues in estate planning.

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Charitable Donations – What MOTIVATES You To GIVE?

By Vanessa DeDominicis
What are the Motivators for Charitable Giving? Think about it, what motivates you?Everyone has their own reasons for wanting to make a difference. I have clients all the time who raise charitable giving with me as a desire for their Estate Plan.  No matter how little a client has, “where there is a will there is a way”, so to speak. A client only has to raise this as a desire, and we will find a way to structure it for them [...]

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Income Splitting Strategies With Family Trusts: Pay Your Children’s Tuition Fees With Tax-Free Money

By Thomas Fellhauer
There are many types of income splitting strategies which are used in Canada. All of them are based on the fact that in Canada each person is taxed separately. As a result, there are significant tax savings where income is divided among family members.  It works particularly well with children who are 18 years old or older and are full-time students.  It is possible to put together a strategy where your children’s tuition [...]

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Executor’s Duties [PDF]

By Vanessa DeDominicis
What happens if you are appointed Executor?If you have been appointed Executor in a Will there are a wide range of obligations and responsibilities that you must fulfill. However, if you do not wish to act as the Executor, you may decline to do so by renouncing your Executorship and signing the appropriate documents so that the Alternate Executor may act or so that some other person may apply for ‘Letters of Administration’.What [...]

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Life Planning Considerations

By Curtis Darmohray
Your Will is an essential part of any Estate plan, but it only comes into effect on death. As such,  your Will is not able to address issues that may occur while you are alive, such as appointing representatives to act on your behalf in the event of mental or physical incapacity. Powers of Attorney (POAs), Representation Agreements and Living Wills are all important “Life Planning” tools that are effective while you are [...]

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Estate Planning And Charitable Gifts

By Vanessa DeDominicis
Leaving a charitable donation in your Will can be a wonderful way to benefit a charity that has meant a great deal to you during your lifetime. It gives the testator a really ‘feel good’ last word, and an opportunity to say ‘thank you’ for all the great work that charities do for our community.

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The Importance Of A Will

By Vanessa DeDominicis
Everyone should have a Will. A Will becomes even more important where you have assets (i.e. own a home, have businesses etc.), have a spouse and/or children. By not having a Will, you effectively lose control over who gets your estate, how much and when. You also give up the right to appoint an executor of your choice to administer your estate as you direct in your Will and you also give up the right to appoint a guardian of your choice for [...]

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Probate Fee Planning

By Theresa Arsenault, Q.C.
British Columbia is a unique jurisdiction for estate planning because of:probate fees of 1.4% of the gross value of the assets that pass through Estate ($14,000 per million); andthe Wills Variation Act (“WVA”) which allows a spouse or child to apply to vary the Will if they don’t believe “adequate provision” has been made for them in the Will.Because of both of these provincial laws, planners use tools here that [...]

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How Can A Philanthropic Governance System Help A Family Business?

By Vanessa DeDominicis
Over 80% of businesses around the world are family owned businesses. Specifically, Canada’s family businesses employ 4.7 million full-time employees and the total annual sales of Canadian family businesses is $1.3 trillion (Source: BDO Dunwoody/ Compass Report on Canadian Family Business; Source: Miller, D. & Le Breton-Miller, I. (2005). Managing for the long run; Boston: Harvard Business School Press.)

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Ask A Lawyer – Protecting A Vulnerable Parent From Financial Abuse

By Joni Metherell
My elderly father seems to be losing his ability to manage his financial affairs. I’m also worried that my step-sister is “borrowing” money from him. Dad doesn’t seem to be keeping records, and he’s always been really careful about keeping things equal between the kids. What can I do to protect Dad, and make sure that he’s not taken advantage of?

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Some Questions To Get You Thinking About Your Estate Plan…

By Vanessa DeDominicis
If you don’t already have a Will in place, or if you haven’t looked at your Will for a while, take five minutes to answer a few of these simple questions.  You may be surprised how many of them apply to you……Do you have a Will?If you die without a Will, your assets may be administered by the Public Trustee and distributed in a manner contrary to your wishes.Do you have children?

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The Supreme Court Of Canada Gives The Final Word On The Residency Of A Trust

By Melodie Lind
Last month, the Supreme Court of Canada released its decision in Garron Family Trust v. The Queen (also known as St. Michael Trust Corp. or the Fundy Settlement). The Supreme Court of Canada upheld the decisions of both the Tax Court of Canada and the Federal Court of Appeal that held the residency of the trust is to be determined on the basis of where “its real business is carried on.” Or, in other words, the residency of a [...]

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Incapacity Planning And Your Health Care

By Vanessa DeDominicis
A Representation Agreement is a legal planning document which can be used in British Columbia to provide your named representative the authority to make health care decisions for you if you are unable to do so because of mental or physical disability. Living Will language can also be incorporated into a Representation Agreement which provides the named representative the legal right to refuse specific medical treatment or any treatment at all.

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Thinking Of Buying Property In The US? Consider Ownership Through A Canadian Trust

By Melodie Lind
With the strong Canadian dollar and attractively low real estate prices in the US, more and more Canadians are purchasing real estate in the US. Some of the considerations prior to doing so should be the tax implications and whether or not ownership should be through a Canadian trust.

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Philanthropy And Your Will

By Vanessa DeDominicis
phi•lan•thro•py is defined in the English Dictionary as “altruistic concern for human welfare and advancement, usually manifested by donations of money, property, or work to needy persons, by endowment of institutions of learning and hospitals, and by generosity to other socially useful purposes.” Donations to charity via a Will are a main source of income for many Canadian charities.

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Elder Abuse

By Vanessa DeDominicis
Unfortunately, elder abuse occurs every day in BC. As many as one in two seniors in BC is abused. It is difficult to know when adults are being abused or neglected and often even harder to know exactly if or when to step in. Elder abuse can take many forms, both financial and non-financial. We often assume that adults can take care of themselves, but this may not always be true.

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Ask A Lawyer – Question: I Haven’t Seen Or Spoken To My Son In Almost Two Years. Can I Exclude Him From My Will?

By Joni Metherell
It’s not uncommon for a parent making a Will to want to treat his or her children unequally. Sometimes there are very good reason why one child should receive more (or less) from a parent when that parent dies. Such reasons might include special financial needs (such as if a child has a disability that affects his or her earning ability) or gifts that were made during the parent’s lifetime that are being equalized through the Will.

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Does Your Power Of Attorney Need To Be Replaced?

By Theresa Arsenault, Q.C.
If you own shares in a private company and you have a power of attorney that pre-dates September 1, 2011, you may need to replace your enduring power of attorney to permit your attorney to continue to hold those shares after the attorney starts to act for you.

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Wills Checklist – Do you have a will? Have you reviewed it recently?

By Pushor Mitchell LLP
A will is one of the most important legal documents that you will ever sign. If you die without a will, your assets may be administered by the public Trustee and distributed in a manner contrary to your wishes. Attached is our wills checklist that addresses the following: Do you have a will? Do you […]

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Estate Planning Considerations: Providing For Your Disabled Loved Ones

By Melodie Lind
Everyone should have an estate plan, including a Will. Your estate plan disposes of all of your worldly possessions and is your last means of providing for your loved ones. Having a good, well thought-out estate plan becomes even more important when one of your beneficiaries is living with a disability.

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Amendments To The Power Of Attorney Act, In Force September 1, 2011

By Vanessa DeDominicis
NEW RULES for Attorneys A number of significant changes to the Power of Attorney Act come into effect on September 1, 2011. These amendments will entrench the Enduring Power of Attorney as the document of choice for most people who wish to plan for the management of their financial affairs in the event of incapacity. […]

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Using A Trust To Pay For Your Children’s Education Expenses

By Thomas Fellhauer
A family trust is an excellent tool to minimize taxes through income splitting.  It is particularly useful for parents who want to provide financial support for their children’s post-secondary education expenses.A family trust can be used by business owners, professionals and self-employed persons to save taxes through income splitting with family members.  To use a family trust in this fashion, you need to operate your [...]

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Don’t Forget To Plan For Living!

By Curtis Darmohray
Your Will is an essential part of any Estate plan, but it only comes into effect on death. As such,  your Will is not able to address issues that may occur while you are alive, such as appointing representatives to act on your behalf in the event of mental or physical incapacity. Powers of Attorney (POAs), Representation Agreements and Living Wills are all important “Life Planning” tools that are effective while you are [...]

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Estate Planning For First Nations, Specifically In Relation To Reserve Land

By Vanessa DeDominicis
This is an interesting but complex area of the law. The Indian Act sets out a land holding scheme that is meant to preserve the Indian band’s ancestral land base in a communal sense. In line with the purpose of the Indian Act to protect the ancestral land base of Indian bands, only band members can acquire Certificates of Possession in reserve land. Certificates of Possession denote a transfer in rights to land on a reserve from the [...]

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When Should I Review My Will?

By Vanessa DeDominicis
If you have an existing Will, that’s a great start. However, as your life changes, so do your estate planning needs. Estate planning should be viewed as a process, not as a one off event. As you progress through the journey of life, things happen that require you to address your Will. Furthermore, with upcoming changes in the law relating to Wills and Estates, now is a great time to review your estate plan.As a guide, the life events [...]

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Types of Trusts

By Theresa Arsenault, Q.C.
Trusts can be an important part of your estate plan.  There are many types of trusts, and your estate planning lawyer can help you determine if a trust will be beneficial for you.  To help you understand a bit about the various trust used in estate planning, the following is a basic primer on types of trusts.

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Estate Planning with Foreign Real Estate: Tax Treaty Relief

By Pushor Mitchell LLP
As discussed in a previous article, the combination of the Canadian income tax consequences that arise on death in respect of foreign real property and the foreign taxes that may apply in respect of that same property may result in double-taxation. One way that such double-taxation may be mitigated or eliminated is by the application of a tax treaty.

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Representation Agreements

By Vanessa DeDominicis
A Representation Agreement is a legal planning document which can be used in British Columbia to provide your named representative with the authority to make health care decisions for you if you are unable to do so because of mental or physical disability. Living Will language can also be incorporated into a Representation Agreement which […]

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Trusts: Planning for the 21 Year Rule

By Pushor Mitchell LLP
In the March 31, 2010 issue of Legal Alert I wrote an article entitled “Will Your Trust be Subject to a Canada Revenue Agency Audit? Are You Prepared?”.  That article included the suggestion that trusts should be reviewed to ensure that the effect of the 21-year deemed disposition rule has been considered.

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Pitfalls Of Joint Ownership

By Theresa Arsenault, Q.C.
Probate fees of 1.4% of the gross value of assets located within British Columbia and passing through an estate in British Columbia are payable to the BC government at the time an estate is probated. In an effort to avoid these fees, people often transfer assets into joint tenancy with one or more of their children or others. This can create a whole other set of problems for people as we'll describe below.Capital Gains Issues

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Joint Spousal And Common Law Partner Trusts (“joint Partner Trusts”) And Alter Ego Trusts

By Theresa Arsenault, Q.C.
Joint Partner Trusts and Alter Ego Trusts are new forms of inter vivos trusts which make inter vivos trusts far more attractive as a planning tool for older clients.  Previously, inter vivos trusts were burdened with the unfortunate income tax result of a deemed disposition of the assets transferred into the trust.  This often had the effect of accelerating capital gains tax payable on the increase in value of the assets, which tax [...]

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Life Insurance Testamentary Trusts

By Thomas Fellhauer
INTRODUCTION The combination of life insurance and testamentary trusts provides an excellent estate planning strategy. Satisfies many of the estate planning objectives of our clients. Very flexible: trusts can be personalized to suit virtually all client needs. Very reasonable cost: if death benefit is more than $100,000, the tax savings should easily justify the cost. […]

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Charitable Bequests

By Theresa Arsenault, Q.C.
Bequests in Wills are the largest source of charitable giving. Bequests have continued in growing popularity because:1. People have more money than they need to adequately provide for their spouse and children;2. People are recognizing the urgent need in organizations providing health care, education and social services, as government funding cuts continue;3. People want to help and want to leave a legacy to their community;4. Some people [...]

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Estate Freeze

By Theresa Arsenault, Q.C.
An estate freeze is a process by which a client takes steps to stop or limit the future growth of his or her estate and provides for the future growth to accrue to the benefit of his or her children or other family members.

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