January, 2023
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Do I need an estate litigation lawyer
Disclaimer: This article on choosing an estate litigation lawyer 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.
Estate law is more than preparing a will or settling an estate after the death of a loved one. There is also the litigation side of estate law. This article is designed to help you understand if you need to pursue estate litigation and if so, what that would look like.
At Beeksma Law, we practice in a variety of areas, including estate litigation. We understand that disputes involving estates can be unquestionably difficult and emotional. We provide guidance to help our clients navigate these complicated cases, so they are able to make the best decisions for their families.
Firstly, a note for those planning their estate.
Preventing Estate Litigation
To begin with, if you are planning your estate, it is important to take steps to prevent future disputes. This includes ensuring that your will is clear and properly drawn with the help of an estate lawyer, that all assets are properly allocated, and that executors and trustees know what is expected of them. With proper planning, you can be more confident that your executor will follow your wishes and avoid disputes.
What is estate litigation?
Simply put, estate litigation is when someone seeks legal action because of a dispute involving the management, control and distribution of property within an estate.
Let’s consider some examples of when someone may want to pursue estate litigation.
- Challenging or contesting a will
- Disputes related to how the estate executor carries out their duties
- Disputes related to how much a beneficiary receives from an estate or how much the estate is worth
- Issues related to how a power of attorney is being used
- Disputes between co-executors
- Disputes between co-attorneys of a power of attorney
- Disagreements between beneficiaries
- Disputes related to compensation for the estate trustee
- Guardianship and incompetency disputes
- Disputes that arise when there is no valid will
If you think you may need to pursue estate litigation, discuss this with an estate litigation lawyer immediately. In Ontario, estate litigation is time-sensitive. You must file a claim within two years after you knew or ought to have known that there was an issue. Generally, the legal standard is that the time limit begins when a “reasonable person” would know there was a problem.
Litigating an estate claim
Let’s very broadly outline how the process works if you need to litigate an estate claim. At any point, either side can file motions requesting that the judge make an order on a certain issue.
First, one party files a claim, along with any affidavits and evidence to support those claims. Then, the respondent responds to the claim, which includes their own affidavits and evidence. The applicant may or may not reply to the respondent.
Thereafter, each party cross-examine the other under oath about the materials, as well as any affidavits that they have filed.
Mediation is mandatory in Ontario. Mediation is where a neutral third party helps the parties come to an agreement. However, if this is unsuccessful, the case goes to trial, and both sides present their evidence and arguments to a judge. The judge will make a decision and issue an order that the parties must abide by.
Resolving an estate dispute without going to trial
It’s important to acknowledge that estate disputes are highly emotionally charged. Beyond the legal issues involved, grief sometimes makes people act irrationally or want to right wrongs that have nothing to do with the facts being disputed. We understand that and therefore work hard to help our clients move forward in a healthy manner while protecting their legal rights.
Litigation is simply never the best option. Litigation is time-consuming, difficult and expensive. It does not allow you to move forward in handling the estate or putting the dispute behind you. In many instances, mediation or negotiation resolves any estate disputes.
Understanding Estate Litigation With Beeksma Law
At Beeksma Law, we understand estate litigation and how to handle it in a respectful way. With extensive experience litigating estates, we are strategic advocates when it comes to protecting your legal rights.
Book a call with our team today for your complimentary consultation.
Should You Update Your Estate Plan in 2023?
Disclaimer: This article on your estate plan 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.
The beginning of a new year is always an exciting time. It’s a time to reflect on the past year and set new goals for the upcoming one. For many people, a new year means thinking about the future. While none of us like to think about our eventual end, it’s important to consider that reality when considering our future.
You may have a will prepared, but your estate plan is not a “one and done” exercise. In this article, we’ll consider whether you should add “update my estate plan” to your 2023 plans (and how we can help if that is the case).
Your Estate Plan is More Than Your Will
First, let’s address a common misconception. Your estate plan is not just your will. While that document is certainly an important part of the larger plan, it’s only one piece. An effective estate plan may also include trusts and durable powers of attorney for personal care and property.
We talked all about powers of attorney here, but to summarize, there are two types of powers of attorney that you would need in Ontario. One relates to your personal care – the person you name your “attorney for personal care” will make decisions about your medical and lifestyle choices in the event you cannot. The other power of attorney is for property – this is the person who will manage your financial matters if you are unable to do so.
You may have trusts, like a resulting trust, that are part of your estate plan. Or you may not have trusts in place but now realize that it would be prudent to do so.
When updating your estate plan, you’ll want to make sure to review all of those documents or create any documents that are not currently in place.
Life Changes to Consider
As we noted above, your estate plan is not something that you do once. Your estate plan should reflect your life. As we know, life changes.
Here are some questions to consider. Since you created or last updated your estate plan, have you:
- Gotten married, divorced or remarried
- Had children
- Purchased or adopted a pet
- Started a business
- Changed the structure of your business (for example, incorporated your business)
- Moved to another province
- Purchased or inherited any property
- Had a material change in your financial situation
- Had second thoughts about who should be the guardians of your minor children?
- Thought about introducing new timelines for when minor children would inherit your estate?
- Had any other significant life change?
If you answered yes to any of those questions, then it’s time to update your estate plan. When updating an existing plan, you’ll want to consider how the changes in your life will impact your estate plan.
If you fail to update your estate plan to reflect your current situation, it could mean that certain assets may not be distributed in the way that you intended. Your executor may have to go to court to obtain direction on how to proceed. This could mean that assets are frozen until the court provides direction, which could delay the distribution of assets and create additional costs.
Therefore, updating your estate plan is important to ensure that it reflects your current situation.
Changes to your executors and attorneys
Speaking of your executor, we have spoken before about how to choose an executor and how important that role is in the estate planning process. We have also written about the role of an alternate executor in case your primary choice is unable or unwilling to serve as executor. If you have powers of attorney, you will have people appointed in those documents to serve as your attorney.
Therefore, it would be prudent for you to review who you have named as executors and alternates in your existing estate plan. You may want to update that list if you are uncertain that your original choices can still operate in that capacity.
For example, perhaps your current executor now suffers from ill health and is unlikely able to take on that responsibility. Perhaps your relationship with that person is not as solid as it once was. Or maybe your estate has become more complex and it may make more sense to appoint a professional executor.
In any event, reviewing those appointments can help you be sure that your executors and attorneys are still the right choices.
Title Changes and Your Property
Many clients are coming to us because they want to transfer their property (like a cottage) to their children while they are still alive.
We have an entire article dedicated to that here but, as it relates to estate planning, transferring a property into joint tenancy or to the children while you are alive will impact your existing Will and other estate planning documents.
You need to make sure your intent is clear, and you may need to put additional documents in place. It’s not as simple as transferring the title – you really need to speak to your lawyer and accountant to ensure the transaction is structured in a way that reflects your wishes and that no additional taxes or probate fees will be due.
What if I don’t have an estate plan?
What if you don’t have an estate plan at all? An estate plan is not just for the wealthy or those who have a lot of property to pass on – it’s actually very important for everyone. An estate plan helps your family understand how you want your affairs handled if something were to happen to you and can save them a lot of time, effort, confusion and money.
If you don’t have an estate plan in place, we encourage you to make it a priority in 2023. If we have learned anything from the past few years, life can change quickly and without warning.
Go into 2023 with peace of mind
While no one wants to think about passing away, it is one reality that we all have to face at some point. What we leave behind is fully within our control. What kind of legacy are you leaving for your family?
The best gift you can give to your family is the peace of mind of knowing what your wishes are and making it easier for them once you pass on. At Beeksma Law, we want to help you do that. Let us know if you need help updating your estate plan and entering the new year with peace of mind.