July 30th, 2015
In Part 1 of this 3-part blogpost, I explored the question about whether Sandra’s daughter with a disability, Stacy, should have a Will given the few assets that she has. Last week’s blog post discussed the question of whether or not Stacy has the mental capacity to sign a Will which is referred to as having testamentary capacity. In this final part, I will explore what happens if Stacy is mentally incapable of signing a Will.
If Stacy dies without a Will, she would die “intestate”. She would be unable to name a beneficiary to inherit whatever assets she may own at her death including what may be left in her Registered Disability Savings Plan (‘RDSP’). Read the rest of this entry »
July 23rd, 2015
Last week, in Part 1 of this 3-part blogpost, I explored the question about whether Sandra’s daughter with a disability, Stacy, should have a Will given the very few assets that she has.
However, the more challenging question that needs to be explored is whether or not Stacy has the mental capacity to sign a Will. Read the rest of this entry »
July 18th, 2015
As our office specializes in helping individuals with a disability as well as their families, I am often asked this question. Quite recently I met with Sandra and her daughter, Stacy, at my law office in the Stittsville-Kanata area of Ottawa. Stacy had been diagnosed with autism at a young age. They wanted to know whether Stacy should sign a Will. They advised that Stacy has a Registered Disability Savings Plan (‘RDSP’) of about $65,000 and a small bank account.
I advised Sandra and Stacy that the fact that Stacy has a fairly significant RDSP which continues to grow makes it essential for her to have a Will. Read the rest of this entry »
June 18th, 2015
With the end of the school year quickly approaching, it seemed like a good time to consider this question. At our law office in Ottawa, we are asked this question time and time again by the executors we work with and by our estate planning clients. Many are surprised at the answer.
A Registered Education Savings Plan (RESP) is often opened by a parent or grandparent, the subscriber, to save for the post-secondary education of a child or grandchild. Many subscribers mistakenly assume that upon their death the RESP will be treated like other registered assets, such as TFSAs and RRSPs, which pass directly to the beneficiary that they have named. Read the rest of this entry »
June 12th, 2015
What if my Estate Information Return is audited?
The New Year brought with it some big changes for Ontario executors or estate trustees. At my law office in the Kanata-Stittsville area of Ottawa, there has been plenty of discussion about the new Estate Information Return (EIR) and the potential for an executor to be faced with an audit. Executors have always been responsible for ensuring the right amount of probate tax, now referred to as estate administration tax or EAT, is paid. The primary purpose of filing the new EIR filing is to ensure that all assets have been properly reported, valued and the applicable EAT has been calculated and paid. With the new rules in place, executors need to be prepared for an audit if their EIR is selected for review. Here’s what you need to know.
Read the rest of this entry »
June 9th, 2015
What is the second marriage problem? If a couple marry or live common law a second or even a third time, how do each of them ensure that children from a previous marriage or relationship inherit but the second spouse isn’t left destitute or worse yet when the first spouse dies.
Dr. Samuel Johnson famously remarked that remarrying was “the triumph of hope over experience.” Whether marrying again or ‘living together’ in a subsequent relationship, at the beginning hope is usually high that this one will last forever. That’s the ideal time to talk about the problem … “How do we take care of each other if one of us dies and yet ensure that our own children inherit from us?”.
Read the rest of this entry »
May 28th, 2015
I’m asked this question quite frequently at my law office in the Kanata-Stittsville area of Ottawa. The answer is yes, under Ontario law, but with one qualifier. If the testator (the person who signed the Will) is legally divorced from his or her spouse when the testator passes away, any Will signed before the divorce is still valid but would be read as if the testator’s spouse had died first. All other provisions of the Will would still be effective. However, if the testator’s circumstances have changed since the Will was signed, the Will’s remaining provisions may no longer reflect the testator’s goals. Read the rest of this entry »
May 14th, 2015
This is one of the questions I am most frequently asked at my law office in the Kanata-Stittsville area of Ottawa. Generally, the individual has been named as executor in the Will of the deceased but does not yet have access to the deceased’s bank account.
The first thing I remind the executor (‘estate trustee’) is that if they were acting as the deceased’s Power of Attorney for Property, their authority as Attorney ended on death. So, the Power of Attorney for Property cannot be used to pay the deceased’s bills.
It may be possible to have the deceased’s bills paid in a couple of other ways: Read the rest of this entry »
May 7th, 2015
Budget 2015 included an exciting extension for individuals with a disability and their families with respect to registered disability support plans (RDSPs). Budget 2012 had previously introduced a temporary measure to help those with a disability open an RDSP if the person with a disability did not have the ability to enter into a contract and did not have a legal representative such as a guardian or Power of Attorney for Property. In such cases, certain qualifying family members, including a parent or a spouse, can become the RDSP holder. This temporary measure was originally put into place until December 31, 2016. However, this deadline has been extended to December 31, 2018. Read the rest of this entry »
April 30th, 2015
If you have asked this question, don’t worry, you are not alone. At my law office in the Kanata-Stittsville area of Ottawa, we often get asked this question. Most of our estate planning clients and the executors or estate trustees we work with have not heard the term “issue per stirpes” before. It likely goes without saying that the language of legal documents is unfamiliar to most people and can be difficult to understand.
“Per stirpes” is a latin term meaning “by roots” or “by branch”. “Issue” refers to everyone down the family tree starting from a particular person. So my “issue” would include my children, my grandchildren, my great-grandchildren and so on. It would not include my parents, siblings, nieces or nephews. Read the rest of this entry »