November, 2022
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What to Expect When Someone You Love Dies
Disclaimer: This article on losing a loved one and estate law in Ontario is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
Dealing with the death of a loved one is difficult, and if you are going through that, we extend our condolences. While you are bearing your grief, you may also have to understand the legalities of what comes next.
We believe in providing our readers with comprehensive and understandable information, so in this article, we will provide an overview of what to expect when a loved one dies in various circumstances. Of course, your situation will be unique, and we encourage you to discuss the specifics with our team.
What to Expect When There is No Will
The first thing you want to do when your loved one passes away is to locate their will. But what if the deceased had never prepared a will?
In estate law, if the deceased did not have a will, they are said to have died intestate. This means that their assets will be distributed according to the provisions set out in the Succession Law Reform Act.
If a person dies with a spouse and no children, then their spouse inherits the entire estate. However, if there are children, the spouse inherits the first $200,000, with the remainder split equally. (NOTE: When a married person dies without a will, the surviving spouse can claim either:
- half of the net family property (as per the Family Law Act); or
- claim their entitlement under the Succession Law Reform Act.)
If there are children, but no spouse, then the children divide the estate equally.
The division of an estate can get much more complicated when there is no spouse or children. In that instance, it will go to the parents. In the absence of parents, it will go to any siblings (with nieces and nephews receiving their parent’s share if that sibling has passed away.)
From there, the courts divide the estate amongst grandparents, aunts, uncles, cousins, and so on. If no relatives can be located, the estate will go to the Crown.
You must probate the estate and there will be considerable expenses in doing so. This highlights the importance of having an estate plan in place and updating that estate plan on a regular basis as your life changes.
What to Expect As the Executor
As we have previously noted, the first thing you want to do when your loved one passes away is to locate their will. If they had a will, then they would have likely named an executor in that document. In the event that they have not, you can apply to the courts
The role of the executor is to settle the estate according to the instructions set out in the will. It also includes dealing with any debts and liabilities that the deceased may have had.
If there is no will, then the role of the executor is to follow the intestacy rules as set out in the Succession Law Reform Act.
The role of executor can be a daunting one. As we have noted, it is a significant responsibility and one that requires much of your time and energy. There is a reason that lawyers commonly call it the “executor’s year”. This is not something that takes mere weeks or months.
Of course, you do not have to do it alone. Surrounding yourself with sound advice from experienced professionals means that you will be able to navigate this process with greater confidence.
What to Expect As a Beneficiary
If you are named as a beneficiary in someone’s will, you can expect to receive your inheritance as soon as the executor can release it. Again, this is not something that happens overnight and it may move slower than you had thought.
The role of the executor is to pay all debts and liabilities of the deceased before any assets are distributed. This could include funeral expenses, taxes, and so on.
Once the executor has paid any debts, he or she will then move to distribute the assets according to the instructions set out in the will, withholding some of the estate to account for any further taxes levied by the CRA.
As a beneficiary, you do not have much say in how the estate is distributed or how long it takes for you to receive your share. This is all up to the executor. However, if you feel that the executor is not fulfilling their duties or if there is some issue with the will itself, then you can seek a remedy from the courts.
You also have the right to be informed about the status of the estate, such as when the executor applies for probate.
What to Expect: Compassionate Legal Advice During Your Most Difficult Period
At times, the death of a loved one can be sudden and unexpected. Other times, it may be the culmination of a long and difficult battle with illness. No matter the circumstances, losing someone you love is always going to be a difficult experience.
The last thing you want to deal with during this already tough period is managing complex estate law issues. Fortunately, you don’t have to go through this process alone. The team at Beeskma Law has extensive experience helping executors settle wills and estates, as well as helping you to set up an estate plan before you need it.
We understand that this is a difficult and emotional time for you and we will compassionately guide you through every step of the process. Contact us today to schedule a free consultation.
The Biggest Commercial Lease Mistakes You Need to Avoid
Disclaimer: This article on Commercial Lease Mistakes is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
Your business is growing and it’s time to move out of your garage, home office, or dining room table. It’s time to find that special place that will help you take your business to the next level. Congratulations!
However, more is involved that finding a realtor and thinking about square footage. No, you need to make sure that your commercial lease serves you well and protects your interests. (For a high-level view of what your commercial lease may include, check out this previous article)
In this article, we will talk about the dangers of signing a bad commercial lease, as well as specific mistakes that you can avoid.
The Cost of Signing a “Bad” Commercial Lease
Commercial leases can be complex, and if you’re not careful, you could end up signing a bad one. A bad commercial lease can cost you thousands of dollars in rent, repairs, and other expenses. It can also tie you to a property that’s not suitable for your business.
One of our clients recently found herself in that very situation. Not only was she faced with the prospect of having committed to a property that she could not use for her business, but she was still obligated to pay rent on it!
We want to help you avoid making the same mistakes our client did. That is why we’ve put together a list of the biggest commercial lease mistakes to avoid.
Mistake #1 – Failing to Negotiate Your Commercial Lease
One of the biggest mistakes that tenants can make is simply failing to negotiate their lease terms. Remember, once you enter into a lease agreement, there is simply not a whole lot that can be done to change the terms – so it’s important to get everything in writing upfront.
Mistake #2 – Assuming that “Standard Terms” are Fair
In many instances, “standard terms” tend to favor landlords more so than tenants. As such, it’s important to have a lawyer or experienced commercial leasing agent review your lease agreement before putting pen to paper.
Mistake #3 – Not Understanding Your Commercial Lease
It is important to clearly understand any agreement that you sign. However, this is especially true when it comes to a commercial lease. If there is anything in the lease that you do not understand, be sure to ask questions and get clarification before signing.
Be sure to carefully review the language regarding operating expenses in your lease agreement. In some cases, tenants may be responsible for a portion of these costs. That is why it’s important to clearly understand what you will and will not be responsible for.
Mistake #4 – Rushing into a Decision
When signing a commercial lease, it’s important to take your time and carefully consider all your options. Once you sign a lease, you will be legally obligated to uphold your end of the agreement. So, be sure that you are fully committed before putting pen to paper.
Mistake #5 – Not Talking to a Real Estate Lawyer
You may feel like it is an unnecessary expense. However, it always a good idea to have a real estate lawyer review your commercial lease agreement before signing. They will be able to identify any potential red flags and help you negotiate more favorable terms.
Of course, you don’t want just any real estate lawyer. You want an experienced commercial lease lawyer who knows the ins and outs of commercial leasing. You want a team with litigation experience writing your contracts. That experience means they have seen how things can go wrong and how to help you avoid those same traps.
In short, you want a real estate law team like the one at Beeksma Law.
Are you in the process of negotiating a commercial lease? Do you have any questions about your rights as a tenant? If so, reach out to our team of experienced real estate lawyers today. We would be more than happy to help you navigate the leasing process. Our team is here to ensure that you are getting the best possible deal.
How to Protect Your Small Business
Disclaimer: This article on how to protect your small business is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
Entrepreneurship is on the rise. There are as many as 1.22 million employer businesses in Canada, 97.9 percent of which were small businesses. However, the sad reality is that many new businesses fail within the first five years. So, what are the key factors that contribute to a successful startup?
There is no single answer to this question as each business is unique and faces its own challenges. However, one answer may lie in how we protect our businesses.
While we may not consider contracts and legalities to be a priority in our business, they should be. Having well-drafted contracts in place from the outset can save your business a lot of money, time and headaches down the road.
In this article, we will talk about why we fail to protect our business, why it is vital to do so and the top three contracts that you should have in place.
Protecting Your Business
Your business is the result of your blood, sweat, and tears. It is hours of hard work, sacrifice, and dedication. So why do we fail to protect it? We work tirelessly to make our dream a reality, but when it comes to protecting that dream, we often neglect to take the necessary steps.
Why is this?
There are a number of reasons. For one, we may not think that our business is susceptible to certain risks. We may also believe that we don’t have the time or resources to put into protecting our business. And finally, we may simply be unaware of the steps we need to take.
However, the truth is that all businesses are susceptible to risks and it is vital to take the time to protect your business. While you will probably be fine most of the time, the damage that of having one legal issue can be enough to completely destroy your years of hard work. Let’s outline what happens in your business when you have strong contracts in place to protect your business.
Building a Strong Business
First of all, taking the steps to legally protect your business and limit your liability brings you peace of mind. It allows you to focus on the work that you love without having to worry about the what-ifs.
In addition, strong contracts set clear expectations between you and your business partners, employees, customers, and vendors. This clarity leads to smoother operations and fewer surprises down the road.
Finally, having well-drafted contracts in place provides your business with a competitive edge. When you can show that you have taken the steps to protect your business, it instills confidence in those who do business with you.
Your Business Contracts
Now that we’ve talked about the importance of protecting your business let’s talk about the contracts you need in your business. But first, what if someone provides you with a contract to sign?
Should I Sign Someone Else’s Contract?
If you are going to be signing a contract provided by a vendor, service provider, client, etc., then you will want to be sure to review it thoroughly. You likely will also want to have it reviewed by your lawyer. A lawyer can flag any issues that you can negotiate before you sign a contract.
This does not have to be an expensive or time-consuming project. You can have a lawyer review and revise a contract for a relatively low amount, but gain peace of mind moving forward in a business relationship.
Ideally, you will provide your own contract, but if you do sign another person’s contract, make sure you review and understand it first.
Now, let’s go over the top three contracts that every business should have in place.
1. Employee Contracts or Independent Contractor Agreements
2. Client Agreements
3. Agreements
While there are many other types of contracts that your business may need, these three are a great place to start.
Employment or Independent Contractor Agreement
Whether you hire independent contractors or employees, you need to have a contract in place. There is a big difference between the two, so you need to make sure to speak to a lawyer to clarify what contractual relationship you’re going to have with the person you’re adding to your team.
This is one area where many businesses see things go sour. The reality is that you probably don’t have the bandwidth as a small business owner to be paying out more money than necessary because of a poor decision.
Specifically, you want to build in confidentiality into your contractor or employment agreement. For many of us, there’s a “secret sauce” or even proprietary information about how we do business. You need to protect your business by ensuring that your employee or contractor cannot use your confidential information, take clients or poach employees.
Client Agreement
This is crucial for both service-based businesses and product-based businesses that are selling higher-ticket items. For the purpose of this article, we will focus on service-based businesses.
You want to ensure that the terms on which you’re providing your service are clear, and you want to be clear on how you can stop working with someone. The reality is that we will all face that nightmare client at one time or another.
When you’re ready to walk away from someone who is, for example, disrespectful to your or your staff, you want to know that your contract allows you to. Because if it doesn’t, and that client does not release you from your obligations, you could be facing an uphill battle.
Another area that your contract must cover is about the terms and timing of payment. The absence of these terms could result in you working for weeks or months without getting paid, which can be frustrating.
By providing clear, strong contracts for your clients, you are setting the tone of the relationship and protecting your business.
Your Estate Plan
This is not necessarily a contract, but it is documentation that will protect you, your family and everything you have worked so hard for. The sad truth is that 56% of Canadians do not have a will or powers of attorney in place.
If something were to happen to you, what happens to your small business?
If you’re a sole proprietor, the answer is likely nothing. Your business dies with you. However, if you are incorporated, your shareholders will inherit the business and its assets.
You need to ensure that you have your business structured in a way that protects your family, your employees and yourself. You also want to make sure the people who are running your business know what to do and how to do it.
Having these documents in place and having them drafted by a strategic, skilled advocate who understands what your business means to you, is simply invaluable.
Protecting Your Business With Beeksma Law
When it comes to protecting your business, you need to have the right people in your corner. At Beeksma Law, we understand that your business is your lifeblood.
We also know that you cannot afford to make a mistake when it comes to contracts or any other legal agreements. That is why we take the time to get to know you, your business and what you need to protect it. Our team has a well-rounded experience to help you protect everything that matters to you most.
To learn more about how we can help you, please contact us today.
3 Questions to Ask Before Co-Owning a Home
Disclaimer: This article on Co-Owning a Home is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
Whether it is to buy an investment property, due to changing life circumstances, such as a divorce, or because of raising interest rates, more and more people are opting to co-own a home with another party. In fact, we recently learned that there are mixers and apps to match potential co-owners together!
While you may be considering the benefits of sharing costs, the reality is that this is not a decision that should be made lightly.
Just as you wouldn’t purchase a home without considering whether it was the right house for you, you don’t want to purchase a home with someone without asking key questions first. In fact, we strongly recommend that anyone co-owning a home should enter into a co-ownership agreement that will set out the rights and responsibilities of the owners.
For clarity, when we talk about co-owning a home, it applies to owning a property with anyone (including children, parents, siblings, etc.) who is not your spouse. Any property owned with your spouse is covered under the Family Law Act.
This article will highlight three questions to ask before buying a home with someone else. Of course, your situation and interests are unique to you. It is always best to talk about these issues with a lawyer who can help you protect your interests and be proactive about any issues that may come up.
Question #1: How will we structure the ownership?
There are two ways that individuals can co-own a property: as tenants in common or as joint tenants.
Tenants in common means that each owner owns a defined percentage of the property. This ownership can be equal (50/50) or unequal. For example, you may own 60% and your co-owner owns 40%. You can sell, borrow against, or will your undivided interest at any time (subject to the terms of any co-ownership agreements.
A joint tenant relationship means that each owner owns an equal interest in the property. If one joint tenant dies, their ownership interest will automatically transfer to the surviving joint tenant(s). There are four criteria that must all exist in order to be considered a joint tenant:
- All joint tenants must acquire ownership interests at the same time;
- All joint tenants must acquire title by the same deed or will;
- All joint tenants must hold an equal and undivided interest in the property (for example, 50/50); and
- All joint tenants must hold an equal right to possession of the property
If any of these criteria are not met, then the joint tenants will be considered tenants in common.
Question #2: Who will be responsible?
It is important to determine who will be responsible for what when co-owning a home. This includes things like:
- Making the mortgage payments;
- Paying the property taxes;
- Paying for repairs and maintenance; and,
- Carrying insurance on the property.
Who is responsible for making sure that the house remains in good repair and is well-kept? It is important to have an agreement that sets out each owner’s expectations and responsibilities.
Question #3: What happens if…
When purchasing property with your relatives or friends, it is hard to imagine anything going wrong. Unfortunately, things can change and it is important to plan for all eventualities.
This is where you’re going to want to use your imagination and think of many possible scenarios. For example, what would happen if an owner:
- wants to sell the property;
- wishes to make improvements or changes;
- tries to borrow money against their interest in the property; or
- passes away?
What would happen if one or more of the owners could not agree or resolve a dispute?
A good real estate lawyer will be able to help you plan for these potential scenarios by including terms in your co-ownership agreement. For example, the agreement could state that if one owner wants to sell the property, the other owners will have the first right of refusal. Or, if an owner wants to borrow money against their interest, they may need to get the consent of the other owners first.
It is much easier (and cheaper) to plan for these issues when everyone is on the same page at the beginning rather than try to deal with them after they arise.
It’s not too late!
What if you already co-own a property? You may still be able to put a co-ownership agreement in place. This is something that you should discuss with a lawyer to ensure that all of your interests are protected.
An ounce of prevention is worth a pound of cure!
We have represented many individuals who now find themselves dealing with time-consuming and expensive real estate litigation. Each of them was convinced that they did not need to put anything in writing – that it would never happen to them.
Don’t let this happen to you! Be proactive and have a real estate lawyer help you plan for all contingencies by drafting a comprehensive co-ownership agreement.
At Beeksma Law, our real estate litigation experience helps us identify potential issues and conflicts that may arise. We then work with you to negotiate strong contracts that will protect your interests and give you peace of mind.
If you are thinking about co-owning a property with your friends or relatives, please contact us to discuss your options. We would be happy to help!