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Donna Neff's Law Blog

I want to name my son as executor but he isn’t a resident of Canada…Is this a problem?

February 26th, 2015

estate planning executor non-residentI recently met with Gerta (not her real name) at my law office in the Kanata-Stittsville area of Ottawa to discuss her estate planning. Gerta was widowed and had two children, a son that lived in Poland and a daughter living in Ottawa. Gerta told me that she wished to appoint her son as executor of her Will as she felt he was more suited to the job than her daughter.

I explained to Gerta that although she could name her son as executor (also called an ‘estate trustee’), it could result in considerably more cost and delay for her estate. Read the rest of this entry »

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I have a son with a disability. Can I open an RDSP for him?

February 19th, 2015

rdsp ottawa will lawyerAt my law office in the Kanata-Stittsville area of Ottawa, I often get asked this question by parents and other loved ones of a child or adult with a disability. The short answer is, it depends.

I recently met with John and Linda (not their real names) to discuss their estate planning. They were considering whether a Registered Disability Support Plan (‘RDSP’) made sense for their disabled adult son, Peter. Given his limitations, however, they didn’t think he would have the capacity to open it for himself. They wondered if they could open it for him.

As I explained to John and Linda, the answer depends upon a few factors: Read the rest of this entry »

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I’m named as my father’s Power of Attorney…How do I know when to start acting?

February 12th, 2015

power of attorney estate planningI recently met with sisters, Sue and Janice (not their real names), at my law office in the Kanata-Stittsville area of Ottawa. Their father had signed a Power of Attorney for Property and a Power of Attorney for Personal Care the previous year. Both documents appointed Sue and Janice to act jointly as their father’s attorneys or substitute decision-makers. Their father had recently suffered a stroke but was doing quite well and his prognosis was good. They weren’t sure if and when they should start acting under the power of attorney documents.

As I explained to Sue and Janice, many power of attorney documents intended to let someone (the ‘attorney’) look after financial matters (using a Power of Attorney for Property) do not have a condition requiring the grantor (the person who signed the power of attorney) to be mentally incapable. If such a condition does exist, it is usually stated in the Power of Attorney for Property document.  As a result, if the attorney has the original, signed Power of Attorney for Property and there are no such conditions in the document, the attorney can use it.

Some banks have their own conditions that must also be met before the bank will recognize the attorney’s authority.  For example, the bank will want to see the attorney’s ID and may require the document to be reviewed by the bank’s legal department which can take several weeks.  Some banks may want to contact the lawyer who drafted the document to verify certain information.

I went on to explain to Sue and Janice that unlike a Power of Attorney for Property, a Power of Attorney for Personal Care can only be used if the grantor is incapable of a particular decision regarding health care, nutrition, shelter, clothing, hygiene or safety.  The attorney for personal care may, for example, make a decision about which long term care residence the grantor will be moved into if the grantor is incapable of making that decision.

I confirmed to Sue and Janice that the attorney named in a Power of Attorney document must have the original, signed document in his or her possession. I also commended them for seeking legal advice before beginning to act under their father’s Power of Attorney documents.

Have you been named in a Power of Attorney document and aren’t sure if you should begin acting or how that works? If so, email info@nefflawoffice.com or call 613.836.9915 to make an appointment to meet with me. We will review your situation and advise you of your duties and responsibilities to ensure your role as attorney goes as smoothly as possible.

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Donna Neff, JD, CS, T.E.P., is a lawyer, a Certified Specialist in Estates and Trusts Law, and a member of the Society of Trust and Estate Practitioners.  Donna has been practising in this area of the law since 1996.  Her firm, Neff Law Office Professional Corporation, is an Ottawa-based boutique law firm specializing in wills, powers of attorney, trusts, including Henson Trusts, estates, and adult guardianship among other matters. Reproduction of this blog is permitted if the author is credited. 

If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information.  Please consult a lawyer or other professional to determine how the information in this blog might apply to you.

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My grandmother left me an inheritance and I’m receiving ODSP…What should I do?

February 5th, 2015

I recently met with Kate (not her real name) at my law office in the Kanata-Stittsville area of Ottawa. odsp inheritance disability trustShe explained to me that her grandmother had recently passed away and left her a cash gift of $100,000. Kate was concerned about what effect the gift may have on the benefits she receives from the Ontario Disability Support Program (‘ODSP’). She had not yet received her gift but, acting on the advice of her father, she had made an appointment to meet with me sooner rather than later.

I told Kate that coming to me before receiving her gift was the right thing to do. It was unfortunate that Kate’s grandmother had not been advised to include a Henson Trust in her Will for Kate’s benefit. There are, however, some steps that Kate can take to protect her ODSP benefits. Read the rest of this entry »

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Should I Have Two Wills?

January 29th, 2015

estate planning willThe Ontario government recently brought into force new regulations that change how it deals with estate administration tax (commonly known as probate fees). As of January 1st, 2015, an executor (or estate trustee) is required to complete and file an Estate Information Return (EIR) with the Ontario Ministry of Finance.  This is in addition to the court Application for a Certificate of Estate Trustee (commonly known as probate).

If an executor fails to file the EIR or if the executor files the EIR and is audited and found to have made “false or misleading statements” on the EIR, the executor is liable, on conviction, to a fine of at least $1,000 plus up to twice the estate administration tax that was not paid. Imprisonment of not more than two years is also possible. Audits can occur up to four years after the court Certificate has been issued. Read the rest of this entry »

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Top Ten Reasons Why Estate Planning Should Top Your New Year’s Resolutions

January 14th, 2015

resolutions ottawa estate planning lawyerDid you know that it is the ancient Babylonians probably made the first New Year’s resolutions? It is thought that the most common resolution for an early Babylonian was to return borrowed farm equipment. Much has changed since then. Today, popular New Year’s resolutions include losing weight, spending less, quitting smoking, getting a better job, and getting fit.

Although you may not have included estate planning as one of your New Year’s resolutions, here are my top ten reasons why having a Will and Powers of Attorney should be at the top of your list: Read the rest of this entry »

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What is the Estate Administration Tax? How Can It Be Avoided?

December 23rd, 2014

estate administration tax probateIn most cases, an Executor (now called an Estate Trustee) cannot deal with the assets of a deceased person without the formal authority to do so.  The Estate Trustee will not have this authority until he or she has been granted a Certificate of Appointment of Estate Trustee (previously referred to as ‘probate’). This is a document issued by the court.  It is obtained by submitting an Application for a Certificate of Appointment of Estate Trustee to the court along with a certified cheque or bank draft to pay the required estate administration tax (previously referred to as ‘probate fees’). Read the rest of this entry »

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Help….I’m acting as an executor and I don’t know where to start. What should I do first?

December 11th, 2014

executor estate trustee dutiesAt times, acting as an executor, or more properly an ‘estate trustee’, can be overwhelming. Many of the clients that I meet at my law office in the Kanata-Stittsville area of Ottawa feel that this is especially true in the beginning.  In the weeks following the deceased’s death, the work required of an executor is the most labour-intensive. This feeling of being overwhelmed can also be compounded by the fact that the executor may be mourning the loss of a loved one and is probably doing a job that he or she has never done before.

With a seemingly endless number of tasks to be done at the beginning, it is often difficult for an executor to know where to begin. Here is a list of tasks that an executor should make a priority: Read the rest of this entry »

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Good Record-Keeping A Must For Executors

December 4th, 2014

executor estate trustee record keepingActing as an executor (also called an ‘estate trustee’) is a big job and comes with a lot of duties and responsibilities. When I meet with executors at my law office in the Kanata-Stittsville area of Ottawa, I stress that one of the most important duties of an executor is to keep detailed records and receipts of all transactions involving the estate. This includes a detailed list of the assets of the deceased and the values of those assets on the date of death.

Good record-keeping is important for a number of reasons: Read the rest of this entry »

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Executor Compensation FAQs

November 27th, 2014

 estate executor compensationAs we focus exclusively in the area of wills and estates at our law office in the Kanata-Stittsville area of Ottawa, we meet with a lot of people who have been appointed as executor (formally called an ‘estate trustee’) of a loved one’s estate. Many executors aren’t sure whether they can be paid and, if they can, how much and when. Here are some of the most common questions we are asked by executors about executor compensation. Read the rest of this entry »

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