Archive for the ‘Wills, Estates and Trusts’ Category
A recent Ontario Court of Appeals case confirmed that a relative of a Will Maker cannot challenge their relative’s Will prior to their relative’s death.
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Testamentary Capacity and Estate Planning is an important consideration in the process of updating Wills.
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If you have Wills that provide for a number of testamentary trusts for spouse and children (and grandchildren), you may want to have them reviewed to see if there is any advantage to maintaining all of those separate trusts.
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If a client has Canadian property and assets in a foreign jurisdiction, it is recommended that they consult with a lawyer in the jurisdiction where they hold those foreign assets.
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When a Trust is established, through a Will or otherwise, it is usually recommended for the Will maker or Settlor to provide the trustees of the Trust with a Letter of Wishes with regard to the administration of the Trust and how they would like things to be handled.
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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.
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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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Executors have many duties to the beneficiaries of an estate - they must act in good faith, to the standard of a reasonably competent person, keep an even hand between the beneficiaries, protect the assets, and make sure the taxes and debts are paid.
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There are 3 “main” documents a client should consider when making an estate plan - a Will, Power of Attorney, and Representation Agreement.
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The New Year is a great time to review your Will. 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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Should I put my Will in my safety deposit box? That is a frequently asked question by many clients of mine.
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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.
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A Power of Attorney, if used carefully, is an important estate planning tool. This legal document is commonly prepared to provide for situations where a person cannot manage his or her own affairs.
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There are a number of important considerations which arise where an estate planning client holds shares in a company including legal, tax and financial considerations.
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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.
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This article is the first in a series about the intersection of family law and estate planning.
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If you have been appointed Executor in a Will, there are a wide range of obligations if you accept the position of Executor.
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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.
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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.
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When a loved one passes away, how do you know if they had a Will? Many people – even those close to us – can be very “cloak and dagger” about finances and personal matters.
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Sometimes, very unfortunately, loved ones go missing. They may never return from a hunting trip, or a hike in the mountains. How can we deal with their assets?
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An Executor/Administrator/Trustee (“Personal Representative”), must be ready at all times to account for the trust property.
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When we do estate planning for clients with significant value in their estates, we often created spousal trusts for their spouse and separate trusts for each child.
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A life estate is the ownership of property/land for the duration of a person's life.
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This topic is substantial. This article only touches on one of the issues. Please note that there are potentially numerous tax issues on death and it is very important to discuss these implications with a lawyer and an accountant.
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Many of us take it for granted that we can meet with our lawyer in person to discuss and sign our estate planning documents which often include a will, power of attorney and representation agreement.
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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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In a world full of social media, online banking and cyber-identities, dealing with digital assets as part of your Will is extremely important.
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Morbid? Yes. Timely? Yes. A Will is a “back-burner” thing. Life is busy... but all of a sudden, a global health crisis has hit us all.
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Life insurance is simply good planning. Naming beneficiaries properly is even better planning, and does take careful thought.
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Being an Executor is a big job. Be careful who you pick, and make sure that they are willing to do it.
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Rule 25-2 of the Supreme Court Civil Rules requires Notice to be sent to beneficiaries, next of kin, and sometimes others, “at least 21 days” before the Executor files the Probate application materials with the Court.
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What does “Estate Administration” actually mean? I often get asked this by my clients.
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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.
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I have been following the evolution of medical assistance in dying in Canada since before the Supreme Court of Canada released its reasons for judgment in the Carter decision.
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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?”
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There are a whole new set of challenges when making an estate plan for a blended family.
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When deciding whether to vary a Will, Courts must consider whether the Will makes adequate provision for children and spouses of the deceased.
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The Wills, Estates and Succession Act (“WESA”) states at section 40 and 43 as follows:
40 (1) Signing witnesses to a will-maker’s signature must be 19 years of age or older;
(2) A person signing may witness a will even though he or she may receive a gift under it.
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If you have been appointed Executor in the Will, there are a wide range of obligations if you accept the position of Executor.
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Whenever I have clients that have Canadian property and assets in a foreign jurisdiction, I always recommend that they consult with a lawyer in the jurisdiction where they hold those foreign assets.
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When a Trust is established, through a Will or otherwise, it is usually recommended for the Will maker or Settlor to provide the trustees of the Trust with a Letter of Wishes.
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Hailing from the UK originally, dealing with firearms in an Estate is simply something I did not learn at law school or ever come across in practice over there. In Canada it is far more common.
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Sometimes, very unfortunately, loved ones go missing. They may never return from a hunting trip, or a hike in the mountains. How can we deal with their assets?
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I have a lot of corporate clients. These clients often have small businesses, or sometimes large businesses that they are one of many shareholders in.
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The job of Executor is an onerous one. You cannot be forced to take on the job when you are named Executor.
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An Attorney appointed to act for another adult under a Power of Attorney has an onerous task.
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If you have a business with a few shareholders, you may have a Shareholders’ Agreement in place. This forms part of your estate planning whether you like it or not.
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Donations to charity via a Will are a main source of income for many Canadian charities.
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Title insurance is protection against loss arising from problems connected to the title to your property.
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Unfortunately, spouses separate, children do not get along with their parents and vice versa.
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Many people are helping their children financially, both while they are under 19 and often well into their adult years.
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A worry for most of my clients with young children is appointing a guardian to care for their minor children in the event of their demise.
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Whichever jurisdiction you own assets in, an estate grant will be required for those assets in that jurisdiction.
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How will my executor or trustee know how I want them to look after my children or spouse?
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In a world full of social media, online banking and identities, dealing with digital assets as part of your Will is extremely important
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Being an Executor is a big job. Be careful who you pick, and make sure that they are willing to do it.
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Rule 25-2 of the Supreme Court Civil Rules requires Notice to be sent to beneficiaries, next of kin, and sometimes others, “at least 21 days” before the Executor files the Probate application materials with the Court.
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Should I put my Will in my safety deposit box? That is a frequently asked question by many clients of mine.
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When you are appointed as an Attorney pursuant to a Power of Attorney, you are placed in a position of extreme trust.
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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 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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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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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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Many people have life insurance, and naming a beneficiary or beneficiaries on that life insurance policy is usually enough.
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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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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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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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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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Seems unlikely, right? But it does happen – sometimes people don’t want to inherit money for a variety of reasons.
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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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An Executor/Administrator/Trustee (“Personal Representative”), must be ready at all times to account for the trust property.
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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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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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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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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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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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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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“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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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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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 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 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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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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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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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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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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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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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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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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