Archive for the ‘Estate Planning’ Category
Thursday, January 7th, 2010
If there is no trust in the Will, an executor may wish to pay the child’s inheritance into Court. By doing so, the executor is discharged from further responsibility to the extent of the amount paid into Court. The executor does not need to monitor the Court’s handling of the money, how it is invested, or keep any further records.
When a minor child is left an inheritance, the Office of the Children’s Lawyer (OCL) may become involved. An office within the Ministry of the Attorney General for Ontario, the OCL’s mandate is to represent personal and property rights of minors and unborn children, including estate and trust matters.
Parents may also be surprised to learn that when a child reaches the age of 18, he or she can demand that the inheritance be handed over to him or her if the inheritance is not being held in a trust. The child can also demand a full accounting of all transactions affecting the inheritance unless previously approved by the Court.
A parent (or other person leaving a gift to a child) who wishes to defer payment of the child’s inheritance beyond the age of 18 can include a trust in his or her Will. In a trust, the parent can specify that partial payments of the inheritance are to be made at various ages with income (what the trust assets earn) being paid out regularly.
Posted in Custodians of Children, Estate Administration, Estate Planning, Guardians of Children, Minor Children, Young Children | Comments Off
Friday, December 18th, 2009
What Is Probate?
Probate is the process of legally establishing the validity of a will. As a result, the Court confirms the appointment of an Estate Trustee (or Executor). The Estate Trustee administers and distributes the estate of the deceased person. An Estate Trustee may be appointed with or without a Will. If there is a Will, the Court issues a Certificate of Estate Trustee with a Will. If there is no Will, the Court issues a Certificate of Estate Trustee Without a Will and the estate is distributed according to Ontario’s intestacy laws. When a person dies without a Will, they are said to have died “intestate”.
When Is Probate Needed? (more…)
Posted in Avoiding Probate, Calculating Probate Fees, Estate Planning, Executor, Probate | Comments Off
Tuesday, November 24th, 2009
If you are the parent of a child under 18 (referred to as a ‘minor’), you may wonder what happens if your child inherits. There are a number of ways that a child may inherit:
- the child could be named as a beneficiary in a Will;
- the child could inherit from a relative who dies without a Will (referred to as ‘dying intestate’) if the child is one of the legal beneficiaries under the intestacy laws of Ontario; or,
- the child could be named as a beneficiary of a life insurance policy or any other asset where a beneficiary can be named, such as a segregated fund, an RRSP/RRIF, or death benefit. (more…)
Posted in Estate Administration, Estate Planning, Guardians of Children, Minor Children, Uncategorized, Young Children | Comments Off
Friday, October 23rd, 2009
Part 2 of 2
Many parents, whether biological or adoptive, are surprised to learn that they do not have the right to name a permanent custodian of minor children. Ontario law gives the court a supervisory role over all custodian appointments and such appointments are based upon what the court considers to be the best interests of the child. (more…)
Posted in Custodians of Children, Estate Planning, Guardians of Children, Minor Children, Young Children | Comments Off
Sunday, October 18th, 2009
This is Part 1 of a 2-part blog
Although not a subject many parents like to think about, parents of a minor child (under the age of 18) should consider who will look after their child if both parents die. This is a decision often debated and agonized over but, all too often, ignored. Hopefully, the information provided in this 2-part blog will help you make an informed decision and will encourage you to put that decision in writing. (more…)
Posted in Custodians of Children, Estate Planning, Guardians of Children, Minor Children, Wills in Foreign Jurisdiction, Young Children | Comments Off
Tuesday, September 8th, 2009
If you have been following my blogs on this topic, you will, by now, be wondering if it should have been titled ‘How Not to Avoid Probating a Will’. Admittedly, that might be a better title.
Although I rarely recommend that a parent try to avoid probate between generations because of the many problems that I have outlined in previous blogs, there may be situations where it is a good idea. (more…)
Posted in Avoiding Probate, Estate Administration, Estate Planning, Uncategorized | Comments Off
Thursday, September 3rd, 2009
We find that a parent will add a son or daughter as a joint owner of the parent’s bank account or other asset to avoid probate fees or to ensure the son or daughter has ready access to funds if the parent falls ill or dies. If the parent’s intention was that the son or daughter actually own the asset upon the parent’s death, it is essential that the parent make that intention clear either in his or her Will or in some other form preferably in writing. Some clear evidence of intention is important as the Supreme Court of Canada has ruled that bank accounts held jointly between a parent and child are generally considered part of the parent’s estate assuming that the child did not contribute to the asset. There are exceptions to this rule, however, such as where the joint owner is a minor child (under the age of 18) or an incapable child.
Although the estate assets held jointly with an adult, capable child are considered part of the parent’s estate, without the co-operation of the joint-owner child, other children of the deceased parent may have to take their sibling to court to recover a share of the bank account if the joint-owner child does not co-operate. (more…)
Posted in Avoiding Probate, Estate Planning, Joint Assets | Comments Off
Wednesday, August 26th, 2009
Previous blogs explained what ‘probate’ is, how the estate administration tax (popularly called “probate fees”) are calculated and how spouses might be able to arrange their affairs to avoid probate on the death of the first to die.
As noted previously, avoiding probate from one generation to the next is much more problematic. Generally, I advise clients that avoiding probate between generations is nearly always a poor idea due to the problems that can be created. As I work exclusively in the area of wills and estates, I see many attempts to avoid probate that end up being more costly than the estate administration tax and, worse yet, cause other unexpected and often serious problems that the deceased did not anticipate.
For example, adding a child’s name to the title of a parent’s home means that the child is now required to sign if the parent decides to sell, re-finance, or otherwise deal with the property. In addition, under Canadian income tax law, each person or couple may have one principal residence which enjoys an exemption from capital gains tax. However, if a child is added to the title of the parent’s home and the child already owns a home of his or her own, the capital gains tax exemption may be compromised. And, if the child is subject to the claims of a creditor or an ex-spouse, the parent’s home could be available to settle the claim.
Continued in Part Four
Posted in Avoiding Probate, Estate Administration, Estate Planning | Comments Off
Sunday, August 23rd, 2009
Understandably, many of our clients wish to avoid probate. To explore how this might be done, if at all possible, it is essential to review the ownership of all assets, beneficiary designations, family relationships, tax implications as well as relationships among family members and the goals of the client. Only then can we recommend what steps should or should not be taken to avoid probate. Avoiding probate is usually possible when one spouse dies leaving a surviving spouse. For example, probate is not generally required if the spouses own assets jointly or where an asset, such as life insurance, is payable to the surviving spouse by way of a beneficiary designation. (more…)
Posted in Avoiding Probate, Estate Administration, Estate Planning | Comments Off
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