One thing you will want to do is update your Will to ensure your children are included as beneficiaries. Consider including a trust in your Will for the benefit of your children and name a trustee to look after the money and pay it to or for your children while they are growing up and possibly beyond 18. Appoint a guardian to care for your children. Note that an appointment in your Will is only valid for 90 days at which time an application  must be made to court by the proposed guardian. Write a letter explaining your reasons for selecting the guardian you did as it may be helpful to the court.

I have an iPad, iPhone 4S, a Toshiba laptop running XP Pro and an Asus netbook.  The steps below describe how to connect any of these using the Personal Hotspot feature.

Caution: Depending upon your mobile phone plan, it can be costly to connect to the Internet this way, especially for long periods or if downloading large files.  I only connect for brief periods and I avoid keeping the wi-fi connection open for long.  I have found this method of connecting especially useful at our cottage which happens to be in a wireless internet dead zone.  A satellite service is available but given our seasonal use, it is not worth the hefty monthly cost.

How to Connect an iPad via the iPhone

On my iPhone:

• Setting
• Personal Hotspot
• Turn ON
• Set a strong wi-fi password (the longer the better)
• Done

On my iPad:

• Settings
• Wi-Fi
• Turn ON
• Check that “Ask to Join Networks is ON”
• Select my iPhone
• When the keyboard appears, type the wi-fi password created on the iPhone

While connected, the iPad displays a double loop symbol in the upper left corner.

How to Connect a Laptop, Netbook or other PC via the iPhone

Follow the steps above to turn on the Personal Hotspot feature on the iPhone.

On a Laptop, Netbook or other PC (running XP Pro but steps are similar in Windows 7):

• Start
• Connect to
• Wireless Network Connection
• Select the iPhone
• Connect
• Type the password twice
• Connect

How to Disconnect

The quickest way to disconnect is to move the iPhone’s Personal Hotspot slide button to OFF.

Marc Matheny and I will share tips like this and more in “You Can Take it With You: Your Mobile Office” at this year’s ABA TECHSHOW to be held March 29-31 in Chicago.

Jim was married with one little boy.  He also had an older daughter from a previous marriage.  She lived with Jim and his family as Jim had sole custody.  Although Jim loved both of his children equally, he felt that his daughter should receive something extra from his estate.  He reasoned that his son would inherit from both Jim and Shawna as well as from Shawna’s parents who were quite wealthy.  However, his daughter’s mother had disappeared years ago and was unlikely to leave anything for her. 

When Jim and Shawna signed new wills shortly after they were married, Jim’s wife had agreed that if they both died, Jim’s daughter should receive a somewhat larger share than their son.  The wills that they had signed reflected that.  It was some years later that Jim came to me on his own (I had never met his wife) and told me how concerned he was that his wife could change her will after Jim’s death and reduce the share that his daughter would get or cut her out completely.   I also pointed out that if Jim died and his wife married again, her current will would be revoked unless special steps were taken.

Jim was in the midst of applying for a significant amount of life insurance coverage.  As we talked about what to do, I explained that documents could be drafted in such a way that all his estate planning goals could be achieved.  The insurance payout could be divided in different portions with some going into trust for his daughter, another portion into trust for his son and the balance to his wife.  We worked out the details and I drafted the complex documents that were needed.

When I later met with Jim to review and sign his documents, he provided a copy of the beneficiary designation form which I had requested. I was surprised to discover that his wife had been named as the only beneficiary.  This was completely contrary to my instructions.  Jim hadn’t discussed his plans with his insurance agent.  Instead he simply went along with the agent’s assumption that Jim was planning to leave everything to his wife.   With one signature on that beneficiary designation form, Jim had completely undone all of his careful estate planning.

Here are the steps I took:

1. If you don’t already have one, buy a VGA adapter for your iPad.  I bought mine at our local Best Buy store.  It looks like this.

2. Download the free Kindle app on your iPad.

3. Open the PowerPoint (PPT) presentation in PowerPoint on your computer.  Select File then Save as Adobe PDF.

1. 4. Email the PDF file to an email address that you can access on your iPad.

5. On your iPad, open the email and open the PDF attachment.

6. At this point, the PPT file should be displayed.

7. Connect the projector and your iPad using the VGA adapter.

8. Power up the projector and, after a slight delay, you should see your PPT exactly as displayed on the iPad.

At this point, you can use the PPT as displayed directly from your email.  However, I go one step further simply because I prefer the Kindle app for navigation and a slightly cleaner, simpler display.

9. To open the PPT in the Kindle app, touch the right-facing arrow in the upper-right corner, select “Open In”, select “Kindle” and the PPT opens to a full screen.

10. To skip forward or backwards several slides at a time, touch the bottom (or top) of the screen to open a navigation bar.  If you touch the sides (left or right), the next slide to the left or the right is displayed.  Alternatively, you can swipe left or right to advance in the opposite direction (swipe to the left to advance to the next slide on your right). To remove the navigation bar, touch the middle of the screen.  If you use the Kindle app to read ebooks like I do, you will be accustomed to the way Kindle navigation works (which isn’t a whole lot different than any iPad app).

One more important tip … make sure your iPad is fully charged before you begin your presentation.  Since the VGA adapter connects to the iPad where the charger would connect,  you won’t be able to charge the iPad while displaying your PPT presentation.

If you are interested in using technology in the practice of law, I encourage you to join me at the ABA TECHSHOW 2012 in Chicago, March 29-31, 2012.  Early bird registration deadline is February 17.

Owning US Real Property

Given the price of US real estate and our strong dollar, many Canadians are buying or thinking about buying a US vacation property.  If you own or are planning to purchase US real property, you should know whether your Canadian will and POA’s are considered valid in the jurisdiction where your property is (or will be) located.  If anything should happen to you, will your executor or attorney for property be able to deal with your US real property?

It is also important to know that if you live in Canada but own property in the US, you may be exposed to double taxation upon your death which arises from Canada’s deemed disposition rules as well as the non-resident estate tax imposed by the US.  Although there may be some relief under the US/Canada Tax Treaty, you’ll need professional advice to understand how you may be impacted and what steps you should take to minimize tax.

US Citizens Living in Canada

If you have dual US-Canada citizenship or if you are a US citizen resident in Canada, there are important issues to consider.  Unlike the Canadian tax system which is primarily based on residency, the US tax system is based on residency as well as on citizenship.  Did you know that:

• All US citizens regardless of where they live, US residents, and green card holders are required by law to file a US tax return. If you have a parent who was born in the US, you may be considered a US citizen even though you have never worked, lived, or attended school.  As a result, you may have US tax filing obligations.
• Failure to submit the required filings on time could result in significant consequences such as passport renewal being denied or being refused entry into the US until tax filing/records are up-to-date.

If you are travelling to the US this winter, currently own or are thinking of purchasing  property in the US, or have US citizenship, be aware of the unique tax, financial, and estate planning issues that you need to consider.  I encourage you to seek the advice of a knowledgeable expert in both Canadian and US tax and estate planning matters that can assist you and provide you with advice as to your obligations and options.

• travelling to the US,
• buying or thinking of buying US real property,
• living in Canada but are a US citizen.

For all of these situations, there are estate planning considerations of particular importance to ensure that your legal obligations are met.

Travelling to the US

Not far behind our fine feathered friends who are heading south right now, many Canadians will soon head south for a winter escape.  Even if it’s just for a brief family trip to Disney World at Christmas or March break, if you are preparing to get away from the cold, ensure that your will and powers of attorney (POA) are up to date before you go.  Does your will reflect your current wishes? Does your executor know that he or she has been named and where to find your documents?   If your children are under 18, does your will name a guardian?   Will your POA’s be recognized in the jurisdiction you will be visiting?

If you plan an extended stay, you need to know how long you can legally remain in the US as a visitor.  Astonishingly, there are four different sets of rules that govern residency. These rules often conflict with each other and compliance under one set of rules may not equal compliance under the others. For example, under the immigration rules, a visitor can legally remain in the US for up to 6 months while under the income tax rules, an individual will be deemed a US resident for tax purposes if legally present in the US for more than four months a year (the days need not be consecutive). There are also estate tax rules for which a specific set of facts and circumstances determines residency.  Under provincial medicare rules, most provinces require an individual to be present in the province for a minimum of six months and have a permanent residence in the province to remain eligible for coverage.

Next time, I will take a brief look at issues related to owning US real property and US citizens living in Canada.

The things I like most about the iPad are how easy it is to use and how truly portable it is. A gentle, quick swipe or two and the screen scrolls right, left, up, down. A two-finger expanding pinch makes tiny text easier on aging eyes. Touch it with a finger in the right place and magical things happen … a book page turns, a letter appears, an unwanted email disappears, photos scroll by. How easy is that!

And it’s hard to beat the iPad’s portability. Given the choice of 8 pounds, 4 pounds, or 1.5 pounds, I know which one I’d rather carry. My laptop plus charging brick weighs just over 8 pounds. My netbook weighs about 4 pounds including a slightly smaller charging brick. My iPad with its feather-weight charging cord add up to less than 1.5 pounds. If the device weighing the least can do all I need it to do, why lug around the extra weight?

And have I mentioned the apps … over 140,000 and counting last time I checked. Many are free and those that aren’t free generally range in price from 99 cents to $19.99. Of the apps that I’ve downloaded for work purposes, most cost less than $10 each. A few work productivity apps that I’ve discovered so far include Dragon Dictation, DocsToGo®, IAnnotate™ PDF, HandySign, GoodReader®, iThoughtsHD, and LogMeIn® Ignition. For travel planning, the apps I’ve found useful include Hipmunk, TripIt®, Kayak, WeatherEye, and Trip Advisor®, all of which I’ve been using on my PC for years. To manage information, I was glad to find apps for Evernote® and DropBox which I already use on my PC and some others that are new to me such as Flipboard™.

Of course, there are just a few(!) games available. Trainyard (99 cents) is easy to learn but rapidly increases to more challenging levels as you use it. Love that you can design your own Trainyard layouts. So far I’ve restrained myself from downloading many games. But really, I should try a few more, don’t you think? All work and no play makes Jack (or Jill) very dull!

The iPad is not all sweetness (ease of use) and light (as in light-weight) however. It is annoying not to be able to view Flash(tm) media, printing is a challenge, and learning a new user interface takes time.

But despite a few bumps in the road, I’m well on my way to knowing and loving my iPad! Thanks, Steve!

Answer: Any Canadian resident under the age of 60 and who qualifies for the federal Disability Tax Credit is permitted to have an RDSP.  An RDSP has a $200,000 lifetime contribution limit; however, there is no annual contribution limit. There are no restrictions on when the funds can be withdrawn or for what purpose they can be used once withdrawn. The supplemental grants and bonds provided by the Government of Canada are only available until age 49 and only if certain conditions are met.

Withdrawals from an RDSP must begin at age 60. There are minimum and maximum withdrawal amounts which are based upon various formulas. For example, the amount, generally monthly, is based on how much is in the plan when withdrawals are to begin and the life expectancy of the beneficiary.

For ODSP purposes, RDSPs are fully exempt and are not considered income or an asset. Withdrawals are not considered income by ODSP; however, once the withdrawal is received by the beneficiary, the $5,000 asset limit would then apply.

A recent court case from BC, McDermid v. McDermid, has confirmed this and illustrates the importance of ensuring that your intentions are clear.  The case essentially pitted one brother, Robert, against another brother, Greg, in a dispute over a piece of property owned by their mother at her death. Approximately five years before she died, their mother transferred the property from her sole name into joint tenancy with Robert.  Greg argued that their mother intended that upon her death, her half of the property should be divided equally among himself and his two other siblings, namely, Larry and Janice. Robert said that his mother intended him to receive her half of the property upon her death as a gift.

The BC court relied upon the decision in Pecore v. Pecore that deals with transfers between a parent and a child. As a result of this case, where a parent has transferred property to an adult child and the child has not paid anything for that transfer, the law does not presume a gift. Instead it is presumed that the parent intended that the child hold the property in trust for the parent (or parent’s estate).  If the parent wants the adult child to have the property on the death of the parent, the adult child must present evidence to rebut the presumption and to demonstrate that the parent intended a gift.

In McDermid v. McDermid, the court reviewed the evidence of each of Robert and Greg in an effort to determine what their deceased mother intended at the time of the transfer. In the end, the court relied most heavily upon a note written by the deceased in which she states that upon her death, her son could divide her half of the property among her other children ‘if [he] so wishes’. The court held that this did not establish a trust but was a mere desire or wish. Taking the evidence as a whole, the court held there was sufficient evidence that the deceased, by transferring the property into joint tenancy with her son, intended to gift her half of the property to Robert upon her death.

Undoubtedly, this dispute caused significant, if not irreparable, damage to the siblings’ relationships with each other – not the kind of legacy most parents would intend and surely not the outcome their mother envisioned when she transferred the property to Robert.

With careful planning, having this happen to your family can be avoided. If you hold, or are planning to hold, any asset jointly with one of your adult children, be sure that you:

• Know exactly how joint title is held;
• Understand the consequences of joint ownership and particularly what happens if one of the joint owners dies; and,
• Ensure that your intentions for what is to be done with the property upon your death are clear and in writing.

As always, we urge you to seek the advice of a qualified professional before you change the title of any assets. There are a number of things to consider when changing the title of an asset.  For example:

• Are there tax considerations?
• What if a joint owner goes bankrupt or is sued?
• What if the marriage of a joint owner ends in separation or divorce?

Ensure your intentions for holding the asset jointly with your child (or anyone else) are clear and in writing. Do not rely on your children to do what’s ‘right’ or to follow your ‘wishes’.

Answer: Generally, in Ontario, a person who is mentally capable of making a will is free to leave his or her estate to whomever they wish.  A parent could exclude a child from his or her will; however, if the parent had a legal obligation to support the child at the time the parent died, the parent’s estate could be subject to a claim to continue that support. If a child is not named as a beneficiary of a parent’s estate and if the child believes they are entitled to support, an application could be made to court asking for support from the estate.  Whether or not the application would succeed would depend upon many factors and the result could not be guaranteed.

 A child who has been excluded as a beneficiary could challenge the will in court if there is evidence that the parent was influenced by someone to leave the child out or if the parent lacked testamentary capacity at the time of signing the will.