July, 2023

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The Importance of Estate Planning in Separation & Divorce

a couple considering their estate planning after divorce

Disclaimer: This article on estate planning after divorce is intended for the purpose of providing information only. It 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.

We have talked before about how you want to regularly consider updating your will, especially after a major life event. One that we want to dive into in more detail is during a separation and divorce. 

People are usually mired in other legal matters relating to their divorce and estate planning becomes an after-thought, something to handle after the dust settles. In this article, we will talk about why you should look at your estate planning sooner rather than later and what you should consider. 

If you are currently separated or divorcing your spouse, we encourage you to book a complimentary consultation with our team to discuss your estate planning needs. 

Changes to the Succession Law Reform Act

As of January 1, 2022, the law surrounding divorced and separated spouses was changed. A “separated spouse” means you have been separated for over three months. 

For example, suppose you pass away and haven’t updated your will. Your ex is still listed as an estate trustee or beneficiary. Now, they are treated as if they had died before you and those particular sections of the will are revoked. 

If you do not have a will (or die intestate), the Act now provides that a separated spouse will not benefit from the estate. Prior to this change, any legally married spouse, whether separated or non-separated, would benefit from the preferential share (the first $350,000) plus either the balance of the estate or an equal share if there are children.  The Act no longer extends this entitlement to separated spouses, and they will not be entitled to this preferential share or any other portion of the estate.

When to see an estate lawyer

The law now provides protection for your estate after you have been separated for three months. However, the reality is that something could happen within those first three months. We advise seeing an estate lawyer as soon as you know that reconciliation is no longer an option. 

In some separation agreements, there may be provisions that limit your ability to do certain things. You may be limited in making changes to the title to properties you own or change your powers of attorney. Therefore, it would be wise to update or create your estate documents before attending mediation or finalizing a separation agreement. 

Property owned with your spouse 

There are two ways to own property with someone else: as joint tenants and as tenants in common. Most times, when spouses own property, they own it as joint tenants. If one joint tenant were to pass away, the surviving spouse would take complete ownership of the property. 

You may not want to have that kind of ownership with your estranged spouse, so what are your options? The good news is that you can sever your joint tenancy unilaterally (meaning you do not need their permission). This will move the ownership to what we call tenants in common. 

The difference is that if you were to pass away before your property is dissolved, your estranged spouse does not take sole ownership of the property. That property becomes part of your estate and will be bequeathed to your beneficiaries. 

Working with other agreements 

In family law, there are agreements that must be considered, such as separation agreements or domestic agreements. You must make sure that your will and powers of attorney do not contradict those other agreements. If they do not align, you are opening your estate up to litigation. The courts will have to decide which document takes precedence. 

Remember, if you have to get the courts involved, your estate will be spending up to tens of thousands of dollars. However, this situation is easily avoided by having documents drafted by an experienced attorney. 

Reviewing your existing estate planning documents

You may have a will and powers of attorney already but are unsure how they hold up now that your family’s circumstances have changed. If that is the case, it is worthwhile to have your documents reviewed by an experienced estate lawyer, like the team at Beeksma Law. We will be able to tell you if your current documents still stand or if it is time to have them updated.

Estate planning after a divorce 

As your family continues to change, you will need to consider how this affects your estate planning. We discussed this earlier, but you will want to consider how to protect the interests of all family members. 

For example, say you remarry or enter into a common law relationship with a new partner. You will want to consider your children from your previous relationships and make specific arrangements in your will to ensure their financial security. On the other hand, you’ll want to provide for your spouse using vehicles like RRSPs and life insurance. 

Expert guidance from the estate law experts at Beeksma Law

Our team of estate law experts at Beeksma Law recognizes that wills and powers of attorney are not static documents. They must be adapted to reflect the evolving circumstances of your family. We understand the importance of staying informed about changes in your life that may impact your estate plan.

Whether you are entering a new marriage, forming a blended family, or experiencing other significant life changes, our experienced professionals can provide the guidance you need. We will work closely with you to understand your unique situation. Our team can help you create an estate plan that protects the interests of all family members.

Contact us today to discuss your estate planning needs. We are here to support you and ensure that your estate plan remains relevant and effective as your family evolves.

Your guide to estate administration bonds

a judge reviewing estate documentation before asking for estate administration bonds

Disclaimer: This article on estate administration bonds is intended for the purpose of providing information only. It 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.

We have noted in other articles an estate trustee’s responsibilities. In this article, we will talk about one requirement that you may face when you probate an estate in Ontario. 

(If you are appointed as an estate trustee, you may be interested in this article about your responsibilities. If you are preparing your estate documentation, you may enjoy this article about how to select an estate trustee.)

What is an administration bond? 

An administration bond is a type of surety bond required in Ontario when someone becomes an estate trustee for a deceased person’s estate. Its purpose is to protect the beneficiaries and ensure that the estate trustee fulfills their duties properly. Generally, the bond is at least double the value of the assets of the deceased. 

When is an administration bond required? 

Ordering an administration bond is at the discretion of the courts, but a judge will typically require an administration bond in these scenarios: 

  • There is no will;  
  • There is a will, but an estate trustee was not named and one needs to be appointed; or 
  • A foreign estate trustee is appointed.

When referring to a “foreign estate trustee”, the courts will not only apply that definition to someone who lives outside of Canada. It can also be applied to estate trustees that live outside of the province. (Read below for how this can affect your decisions when selecting an estate trustee.)

The Estates Act sets out some situations where an administration bond is not required, including: 

  • In cases where the Government of Ontario or any Ministry, Provincial Commission, or Board established under legislative Acts submits an application to act as an estate trustee;
  • There is no will, but the surviving spouse is applying to be an estate trustee and the value of the estate is less than the preferential share and an affidavit sets out the estate’s debts; or 
  • It is a small estate (meaning a total value of less than $150,000) and none of the beneficiaries are minors or incapable (as defined by the Substitute Decisions Act, 1992). 

Waiving the requirement for an administration bond

Most people do not have easy access to the amount required by an administration bond, so you will want to apply for an order waiving the requirement for an administration bond. 

Previously, this was a simple matter that could be handled over the counter with the court registrar. However, as of July 2022, the procedure has changed. A full motion is now required, and it is more likely to require a hearing before a judge. This is a more involved (and more costly) procedure than before. 

If you are looking for an order to dispense with the bond requirement, you must convince the court that the protection that a bond provides to any creditors and beneficiaries is not required. 

Bond insurance 

In some cases, an application to waive an administration bond is unsuccessful, meaning the court will still require it. What are your options in that case? 

You can turn to insurance companies that offer bond insurance policies. From the court’s point of view, these insurance policies serve as the equivalent of a bond, eliminating the need to come up with the full cash amount. 

It is typically a straightforward application that resembles a credit check, where the insurance company assesses the applicant’s financial standing. There is a one-time premium that you must pay. However, this is considered a proper estate expense. Therefore, the estate trustee can be reimbursed once they receive a certificate of appointment. 

Choosing your executor 

Knowing that an administrative bond is more likely when your estate trustee lives outside of Ontario can impact who you appoint. It may make sense to select someone who lives locally rather than someone who is geographically distant or transient. For example, this might include a young adult child with an inclination for a nomadic lifestyle.

Navigating estate law with Beeksma Law 

At Beeksma Law, we know that estate law can be complex, especially when it comes to requirements like administration bonds. Our team of experienced estate lawyers is here to guide you through the probate process in Ontario with confidence and ease.

Whether you’re stepping into the role of an estate trustee or diligently preparing your estate documentation, we’ve got you covered. We offer comprehensive services tailored to your specific needs. This includes ensuring you understand the ins and outs of administration bonds and how they impact you and the beneficiaries. With our expertise, we’ll find the best solution to protect your interests and streamline the estate administration process.

Reach out to Beeksma Law today. Let us be your trusted partner in managing your estate matters – we’re ready to assist you every step of the way!

Case Study: Preparing estate documents for a young family

the back view of a young family who is going to prepare estate documentation

Disclaimer: This article on preparing estate documents is intended for the purpose of providing information only. It 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.

We have talked before about the importance of having a will and powers of attorney in place. But what does it look like to have them done? We turned to one of our recent clients to tell us about her experience working with our firm. 

Tell us about yourself

I am a 30-something-year-old married mother with one child. My husband and I have been married for quite a while, and up until recently, we did not have any estate planning documents. 

I had met Shayna in a networking group, and when we decided it was time for a will, we turned to the incredible team at Beeksma Law. 

What made me think about estate planning? 

Like many people, we had not spent much time thinking about our own mortality. Yes, anything could happen, but it was not at the top of our minds. A couple of things convinced us that it was time to document our wishes. 

First, we became parents, which changed everything for us. The question of what would happen to our son if something happened to both of us loomed over us. While we knew that our families would step in and care for him, what would that look like? Would he be receiving money at 18 that he is ill-equipped to handle? What if there were disagreements about who would be his guardian? 

Also, the pandemic taught us that anything is possible. Anything can happen at any time. We had fooled ourselves into thinking that we didn’t need to do this process because we were relatively young and healthy. However, we came to realize that that didn’t matter. 

While we considered a will kit, ultimately, we decided to work with Beeksma Law. Yes, it was more expensive, but I work with other types of templates in my line of work. They can be okay. However, they will usually not give you the same kind of quality that you get when you make an investment and work with an expert. 

What did you appreciate about the experience? 

I like to do my research, and when we approached Shayna and her team, I thought we had thought things through.  I was wrong! During our first meeting, we outlined a number of areas that had never even crossed my mind. We appreciated how thorough she was and that the documents that we prepared fully considered what happens after we are gone. 

We also appreciated being able to do our powers of attorney at the same time. During our conversations, we were helped to appreciate that a will only comes into effect when we die. What would happen if we were in a terrible accident? Who would handle our affairs? 

We appreciated Shayna’s patience with us, answering every single question that we had under the sun. She was more than willing to make sure we understood our options and the implications of our choices. 

What was it like working with a virtual law firm? 

We loved it! We last worked with a lawyer when we purchased our house. At that time, we had to take time off work, travel to the lawyer’s office, and discuss and sign the documents. 

We had wanted to work with Beeksma Law and were grateful that things were done virtually. Her offices are in Hamilton and Owen Sound. We are located east of Toronto. It would not have been practical if we couldn’t have attended virtual meetings and signings. 

With a virtual law firm, we did not have to do any of that! We had one meeting where I was in the car between appointments, and my husband was able to step away while working. It was so much easier to schedule and attend our meetings with Beeksma Law. When it came time to sign, again, it was so simple. Everything was set up for us to sign virtually, saving us time and effort. 

Simply put, we are pretty busy, and anything easy and straightforward is a big win for us. 

How do you feel after preparing estate documents? 

We feel so much better – this had been hanging over our heads. With strong documents in place, we feel so much more confident knowing our child will be well cared for. 

We are so glad that we also worked with the team at Beeksma Law. They made everything so clear, simple and easy to understand. They ensured that nothing fell through the cracks and were incredibly organized. 

We are extremely pleased with our decision to work with a firm specializing in estate law. We didn’t get the feeling that they dabbled in it or treated it as just another service they provided. Their expertise and passion were evident throughout the process, and there was no doubt that this was their area of expertise. 

Preparing Estate Documents with Beeksma Law 

At Beeksma Law, we love helping families feel confident about their futures by creating strong estate documents. Contact our team today to learn more about how we can help you.

Signing Your Estate Documents: What You Need to Know

Disclaimer: This article on signing your will is intended for the purpose of providing information only. It 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.

In recent years, many of the tasks that used to happen in person have moved online, such as banking, shopping, and communication. 

The legal industry has also adapted to this digital shift, recognizing the need for remote solutions to streamline processes and meet clients’ evolving needs. Remote witnessing of wills and powers of attorney in Ontario is a prime example of how technology can facilitate legal transactions and provide individuals with greater convenience and accessibility.

In this article, we are going to outline the legal requirements for signing your estate documents and how remote witnessing works in our firm. 

Signing your will and powers of attorney

In order for a will to be valid, witnesses must witness you sign the will (unless it is a holograph will, which we discussed here). Certain criteria determine who can act as witnesses for the signing process. The following individuals cannot serve as witnesses:

  • Any beneficiary or their spouse.
  • The person named as executor or their spouse.

Previously, it was required for the testator and two witnesses to be physically present in the same location during the signing of the will. However, since 2021, these requirements have undergone modifications. 

Virtual witnessing is now permissible if at least one of the witnesses is a licensed lawyer or paralegal. You must follow certain conditions, such as ensuring all parties can see and hear each other in real time. 

Signing in counterpart 

When you sign your estate documents remotely, you are “signing in counterpart”. This means that each party involved can sign separate but identical copies of the document. The signed copies are then considered a unified and legally binding document. This flexibility eliminates the need for all parties to be physically present in the same location, making it easier to coordinate and complete the necessary signatures.

Can I use an electronic signature? 

In the realm of estate documents, it is important to note that electronic signatures are not allowed, and “wet ink” signatures are required. Estate documents, such as wills and powers of attorney, hold significant legal weight, and traditional pen-and-paper signatures are necessary to ensure their authenticity and validity. While electronic signatures have gained acceptance in various contexts, estate documents still uphold the traditional requirement of “wet ink” signatures.

a lawyer meeting on zoom to discuss signing your will.

What to expect at your signing meeting

Once we have prepared and finalized your documents, you will have a virtual meeting in order to sign them. We use Microsoft Teams to host our meetings, although any meeting platform can be used. 

First, you will need to have a full copy of your estate documents. You will be initialing each and every page, along with signing the signature pages. We will record your signing meeting in the event anyone questions your intentions at a future date. 

You will hold up a copy of your photo identification so that our team can confirm your identity. We will have a discussion to ensure that you are capable of signing your documents and that you approve their contents. As well, we will discuss who else is in the room with you. This may be important down the road if there are allegations of undue influence

After initialing the lower righthand corner of each page and signing the signature pages, you will hold up each page to the camera so that the recording can capture it. You will also need to send a scanned copy of your documents to our offices. 

After confirming that you have correctly executed the documents, we will then send our signed copy of your will and powers of attorney via registered mail. You can then store them as you see fit. (See here for our suggestions.) 

Beeksma Law and your estate planning needs

When it comes to signing your estate documents, ensuring a smooth and legally sound process is of utmost importance. 

At Beeksma Law, we understand the complexities and sensitivities involved in estate planning and administration. With our dedication to providing personalized legal advice, we can guide you through the intricacies of the signing process. 

Contact Beeksma Law today to embark on a journey toward comprehensive and reliable estate planning.