The death of a loved one or family member is always difficult. Therefore, disputes over an estate can often be protracted, emotional and complex. Therefore, proper estate planning is very important can alleviate a lot of the fear and anguish when mourning the loss of a loved one. We provide the following services which can protect loved ones, avoid conflicts between family members, take care of your interests, and minimize your estate’s financial obligations:
• Estate planning
• Wills
• Powers of attorney for personal care
• Powers of attorney for property
• Applications for directions for executors, administrators, & trustees
• Estate administration
• Codicils
• Applications for probate and administration
• General Advice to executors, administrators, & trustees
Estate Planning
Having a will and estate plan prepared in advance can save you and your loved ones a lot of hassle after you pass on. There are many things to consider when preparing an estate plan and this is something an experienced wills and estate lawyer can assist with. We recommend you consult with one of our estates lawyers for all your estate planning needs.
Creating an estate plan in Ontario involves having a comprehensive strategy for your end-of-life plans that goes beyond just a legal will.
Estate planning allows individuals to have control over the distribution of their assets, make sure their loved ones are cared for according to their wishes, and reduce any financial burden on their family after they pass.
Getting Started: Itemize Your Assets and Liabilities and Get Your Will In Order
The first item on your estate planning checklist is to get your will in order. If an individual passes on without having a will, their assets could be distributed according to provincial legislation. The costs associated with settling your estate in a situation like this are also higher than if you had prepared a will in advance. Before preparing your will, make an itemized list of all your assets and liabilities and remember to consider tax positions on the disposition of all your assets. In your itemized list – we recommend you also consider who your beneficiaries will be for all assets and accounts including your RRSPs, RRIFs, RESPs, DPSPs, pension plans and any life insurance policies you may have.
• Make Arrangements for Your Funeral
When loved ones pass away – it can be an emotional time for those who are left with the responsibility of making funeral arrangements. In an effort to minimize this burden on your loved ones – our estate planning lawyers recommend you plan your funeral in advance and put aside money for the funeral arrangements.
• Make Arrangements in Case You Are Incapacitated to Make Decisions
Another thing to consider is to appoint representative(s) to make decisions on your behalf in the event you are incapacitated and cannot make decision for yourself. Ensure the person(s) you appoint are people you trust implicitly to make decisions in your best interests.
Hire a lawyer to prepare your will
There are many instances where wills get challenged because an individuals’ last will was not detailed enough or done incorrectly. When preparing your last will and testament, powers of attorney or estate plan – make sure you consult with an experienced estate planning lawyer. A lawyer can answer your questions and tell you about tax and other things to consider when preparing a will. A lawyer can also make sure your will meets legal requirements.
A lawyer can also store your will securely where your family can find it after your death.
Choose someone you trust to manage your estate
In an effort to minimize conflicts after you pass on – we recommend you appoint representatives, powers of attorney, executors and trustees for your estate and be very thoughtful in who you appoint for these roles. Firstly, speak with your preferred representatives and obtain their consent to make sure they are okay with being your representatives after you pass on. We recommend your representatives are people who you trust to make decisions on your behalf as well as execute your last wishes in the manner that you desire. When choosing guardians for children – remember that your selected guardians and trustees may have duties until the children reach 18 years of age.
There are many things to think about when choosing an estate trustee, including the person’s:
• age
• time
• ability to manage property and finances
• location
If your estate trustee does not live in Ontario, they might have to post a bond when applying for probate.
After you choose an estate trustee you should let them know where they can find your will.
US assets
If you own property or assets in the US and you are Canadian – it is important to note here that upon your passing, the US imposes a tax on estates. Your estate planning lawyer will guide you on the best approach to deal with your US assets under the auspices of the American estate tax treatment. A tax lawyer may also be of assistance in this process as well.
Trusts
Trusts can be a great way for providing income for your family and loved ones down the road. Whether you set up a testamentary trust (established after you pass on) or a inter vivos trust (set up while you’re alive) – they don’t necessarily fit every situation. We recommend you speak with a wills and estates lawyer to see which option fits your unique situation. Trusts are also used to transfer assets and ensure your beneficiaries are cared for and there are some tax implications to consider as well. This is another reason we recommend you obtain legal guidance from a wills and estates lawyer to help make this decision.
A trust can be created as part of your will to hold certain money, property or personal items for people named in your will. It is managed by a trustee who must act in the best interests of these people.
You might set up a trust to provide benefits to:
• people under 18
• an adult that you feel may not be able to manage the money or property
• address tax implications
Speaking with a lawyer or accountant about your situation is the best way to understand if a trust could help you.
Other estate planning tools
• Jointly Owned Assets
If you own property with someone else, called joint tenancy, the property will automatically pass to the surviving owner if you die.
Joint ownerships can be a great way to minimize probate fees and are typically considered a popular estate-planning strategy. While jointly-owned assets may not work for everyone – in situations where assets are registered jointly with an adult child, transfer of ownerships and assets can be done more easily. However, there are negative drawbacks to this approach as well and we recommend you consult with a wills and estates lawyer to ensure this approach works for you.
If you share a joint account for cash and investments with someone else, in many cases the surviving account holder becomes the owner of the account when you die, with the right to deposit, withdraw, and deal with the funds in the account.
Life Insurance
You can also name someone to inherit the assets from your life insurance and other registered plans.
There are many life insurance providers who have tax-free death benefits. Purchasing life insurance may be of value if the death benefits can be distributed after you pass on in a tax-free manner. This is something your estate planning lawyer can give you advice on as well.
The importance of having a Will
A will, or a last will and testament, is a legal document which designates how to manage your affairs and distribute your assets after death. This includes the distribution of property, guardianship of children (if any), funeral arrangements and more. Wills make it easier to divide up your belongings and fulfill your final wishes. A properly written will makes the distribution of your assets an easier process for your loved ones and beneficiaries.
Your will gives you control over your estate after you die.
Your will gives instructions about what to do with your estate (such as money or property) after your death. You can make sure that certain people get certain parts of your estate. This is important for valuable and sentimental property.
If you do not have a will, it is possible that:
• The provincial government will get involved because no one has a legal right to your estate.
• You cannot leave your estate to the people you want.
• Your relatives will have more costs to settle your affairs.
• You cannot choose the guardian who will take care of your dependents who are under the age of 18, if you have any.
Living Will or Power of Attorney
A living will or power of attorney is also a legal document that can accompany a will. In this document, you would designate a trusted person to act on your behalf while you are still alive. If you become ill or suffer a form of accident that leaves you mentally incapacitated, it is important to have a trusted person who will make decisions for you in good faith regarding your medical attention and regarding your assets.
Not having a Will can jeopardize the future for your loved ones, and, create unnecessary hardships. If you die without a Will, your estate is subject to be distributed in accordance with the Ontario’s Succession Law Reform Act, and would slow down the process of your loved one receiving your estate. Furthermore, someone would have to apply to the courts to be granted the right to have authority over administrating your estate. This process is lengthy and unnecessary, and it is important that you protect your loved ones from this roadblock by creating a Will.
It is advisable that you speak to a wills and estates lawyer to understand the consequences of not having a will. A wills and estates lawyer can assist you in drafting a will that clearly states your wishes to ensure that you’re not burdening your children with unnecessary stress and potential family disputes.
Having a will is crucial to ensure that your loved ones are protected, your possessions are distributed in the manner in which you want. If you’re a business owner, you want to protect the shares and assets of your business and ensure that they’re transitioned properly. While Ontario may have some statutes and provisions set in place to divide your estate after your death, it surely won’t be divided the way you would have wanted. Metelsky Law Professional Corporation is well versed, experienced and skilled in assisting you with your will. Writing your will does not have to be an overwhelming experience. Trust Metelsky Law with your most precious legacy; your family’s financial security after you’re gone.
Estate Administration
As an estate trustee, you are responsible for settling an estate according to the deceased’s wishes.
With so many tasks to complete and so many people and organizations to deal with—including beneficiaries, legal advisors and tax authorities such as Canada Revenue Agency (CRA)—settling an estate is a complicated undertaking, especially when you’re also grieving the loss of a family member or friend.
If you have been appointed as an executor, but do not feel that you can administer the estate or need help with certain duties, a lawyer can offer you a variety of services, including assistance with all of your duties or only those you specifically choose.
Certificate of Appointment of Estate Trustee
When someone dies, depending on the type and nature of the estate assets, you may need an estate certificate to collect and manage the deceased’s estate. An experienced estate lawyer at Metelsky Law will give you legal advice about whether you need to apply for an estate certificate.
A Certificate of Appointment of Estate Trustee with a Will (or Without a Will) used to be referred to as “Letters Probate.” The Certificate of Appointment is a process where the court reviews the Will and gives the court’s stamp of approval as to the authenticity of the Will and verifies your right to act as Estate Trustee (also known as an Executor or Executrix).
In Ontario, an estate trustee is the only person with the legal authority to manage or distribute an estate.
Probate is a procedure to ask the court to either:
• give a person the authority to act as the estate trustee of an estate
• confirm the authority of a person named as the estate trustee in the deceased’s Will and
• formally approve that the deceased’s Will is their valid last Will
If you need to apply for probate of an estate, you can apply to the Ontario Superior Court of Justice for a Certificate of Appointment of Estate Trustee or for a Small Estate Certificate.
You can apply for a Small Estate Certificate if the estate is valued at up to $150,000. If the estate is valued at more than $150,000, you can apply for a Certificate of Appointment of Estate Trustee.
Probate is not always required in order to administer an estate. The type of assets in the estate usually determines whether an estate should be probated. If the deceased owned real property or assets held by a financial institution, the estate normally must be probated.
A person may apply for probate if:
• the deceased person died without a Will
• the deceased’s Will does not name an estate trustee
• a financial institution wants proof of a person’s legal authority to receive the money or investments of the deceased
• the estate’s assets include real property which does not pass to another person by right of survivorship
• the deceased’s real property must be sold (a Certificate of Appointment of Estate Trustee or a Small Estate Certificate should be obtained before anyone enters into an Agreement of Purchase and Sale)
• there is a dispute about who should be the estate trustee
• there is a dispute or potential dispute about the validity of the Will
Before applying for probate, you may wish to determine whether the person or financial institution holding the estate assets or requiring a payment or action by the estate requires you to obtain a Certificate of Appointment of Estate Trustee or a Small Estate Certificate.
An experienced lawyer at Metelsky Law will assist you in completing the appropriate court forms. The lawyer will also explain the risks of providing incorrect information in the forms, explain the legal responsibilities of an estate trustee and advise you on whether a bond is needed. Court staff cannot provide you with legal advice, including advice about the completion of forms.