August, 2023

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Estate Planning and Owning Foreign Property

a beachfront condo - shown as an example of foreign property ownership that must be considered when preparing your will.

Disclaimer: This article on foreign property ownership 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.

Whether it’s your condo in Florida or the family home you still own in a foreign country, you need to consider all of your property when preparing your estate documents. This blog post will briefly outline what you should consider as a foreign property owner and the nuances of estate planning across different jurisdictions.

Seeking Expert Legal Advice Around Foreign Property Ownership

A valid will in Ontario may not be enough if you own property in another jurisdiction. When beginning your estate planning, you will want to seek advice from a local lawyer. Legislation, regulations and practices vary quite a bit between countries. If you own property in the United States, the law will even differ from state to state. So you will want to speak to an estate lawyer in that jurisdiction to understand local property laws more clearly. 

Benefits of Preparing a Will in the Jurisdiction of the Foreign Property

Having a will prepared in the jurisdiction where your foreign property is located brings a sense of certainty and simplicity to the estate planning process. If probate is required, the courts in that jurisdiction will handle the process based on the will specifically drafted for that location. This approach ensures that your executor faces minimal obstacles while finalizing your estate.

Resealing: An Option for Common Law Jurisdictions

In some cases, especially when dealing with common law jurisdictions, “resealing” a probate certificate can be an option. Resealing refers to the process of using an existing probate certificate from one jurisdiction and applying it to another. 

For example, if you have a will probated in Ontario, Canada, and own property in upstate New  York, you may be able to reseal the probate certificate there. This process can save time and expenses as you don’t need to create a new will for each jurisdiction. However, we would consult with a lawyer familiar with the local laws to ensure resealing is a viable option.

Considerations for Civil Law and Non-Common Law Jurisdictions

There are different legal systems, the most common of which are civil and common law. Most of Canada operates under a common law system, except for Quebec. If you are in Ontario and preparing a will, it is based on the common law system. 

If you own property in another common law jurisdiction, you will most likely be able to reseal the probate certificate. Other common law jurisdictions include the United States, Britain, and most Caribbean countries.  However, for example, France and Italy follow a civil law system. Countries like Saudi Arabia and Yemen follow an Islamic law system. 

If you own property in a jurisdiction that is not governed by a common law system, resealing will likely not be possible. In such cases, you are better off drafting a separate will for each jurisdiction to ensure your assets are distributed according to the laws of that country.

Owning properties in multiple jurisdictions

Let’s say that you own property in multiple states within the United States. Does that mean you are creating a will for each state? 

While having a separate will for each state is possible, it can become cumbersome and expensive. Some people opt to draft one set of estate documents to cover all their assets. Their executor would then reseal the probate certificate in each jurisdiction where they own property. We determine your best option on a case-by-case scenario, so contact us about your property ownership. 

Beeksma Law: Creating an estate plan that works for you

When preparing your estate documents as a foreign property owner, there are numerous factors to consider, and seeking expert legal advice is crucial. Beeksma Law is here to help you navigate the complexities of estate planning across different jurisdictions. 

We understand that each situation is unique, and we will work closely with you to create an estate plan that caters to your specific needs and circumstances. Contact Beeksma Law today, and let us help you protect your legacy and secure your foreign property investments for the future.

Estate Planning for Parents of Minor Children: What You Need to Consider When Writing a Will

a black family cuddling together, the parents thinking about writing a will and how their estate planning will affect their minor children

Disclaimer: This article on writing a 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.

When most of us think of estate planning, we imagine an older adult making plans. However, we have seen time and time again how important it is to have estate planning documents in place much sooner, regardless of your family status, age, etc. 

Are you a new parent and are more compelled to think about what happens after you’re gone? Or did you have a will in place, but it was prepared before you became a parent? Has your family situation changed, and you’re now a blended family? If so, we recommend contacting us to create your wills and powers of attorney. 

When writing a will for parents of minor children, there are more factors to consider, which we will outline in this article. For example: 

  • What happens if I pass away but they have a surviving parent? 
  • What happens if we both die? 
  • Are my guardianship choices going to be upheld? 
  • What if my child has received an inheritance from someone else? 
  • Should I let my child receive an inheritance at age 18
  • What if I’m part of a blended family? 

What happens to minor children if one parent dies? 

As far as custody is concerned, the surviving parent will typically retain their inherent rights to custody. This means they will be fully responsible for your children’s upbringing and well-being. 

That inherent right is for custody, not guardianship over their property. We will discuss below in more detail whether or not the surviving parent would be the guardian of your children’s property. 

Writing a will and choosing a guardian for minor children

What if both you and your spouse pass away? Your will should outline your wishes for who should care for your children if both of their parents pass away. There are a few considerations to consider, in line with section 61 of the Children’s Law Reform Act

The Children’s Law Reform Act Requirements for Appointing a Guardian

If you are the only person with decision-making authority for your child, then you can make that appointment in your will. 

However, if you share decision-making authority (for example, if you and your current or ex-spouse share custody of your children), you must agree on any appointments for custody or guardianship of property. For example, if you appoint your parents and your ex-spouse specifies their parents, neither selection is valid. 

You also must appoint someone who consents to the appointment. Have that conversation and make sure the person you select is prepared to take on this responsibility. 

Temporary guardianship 

When you make an appointment for someone to be your children’s guardian, that appointment is only valid for 90 days. The guardians must then apply to the courts to confirm their permanent position. The courts will place a heavy weight on your recommendations, and anyone contesting would have to provide serious evidence that it is not in the best interests of your children. 

When designating someone as the guardian for your children, you must understand that this appointment is initially valid for 90 days. The appointed guardians must then apply to the courts to permanently confirm their role. 

Your recommendations hold significant weight in the court’s decision-making process, making it crucial to consider your choice carefully. However, if someone contests the appointment, that person would need to present compelling evidence showing that it is in the best interests of your children that the court consider an alternative arrangement. 

Rest assured that the legal system prioritizes the well-being and welfare of your children, ensuring that their best interests remain at the forefront during this critical decision-making process.

What happens if my minor child receives an inheritance from someone else?

There are two types of guardianship: custody (or decision-making) and guardianship for property. Let’s consider the second one. 

As a parent, you do not have an inherent right to handle your children’s property. For example, imagine a grandparent bequeaths funds to your child. You want to open a bank account and access it on your child’s behalf. The bank may first request a court order appointing you as guardian of your child’s property. 

The courts will generally appoint you as the guardian of your child’s property unless there are compelling reasons not to do so. While that may seem overly restrictive, it can be a protection. Unfortunately, there have been instances where parents have mismanaged or squandered their children’s property. 

If you pass away, you can appoint someone as guardian of your children’s property. For example, your ex-spouse may retain custody of your children, but someone else would have guardianship over their property under your estate. That person must update the Court and the Children’s lawyer regularly. 

Timing your child’s inheritance

Any inheritance you leave to your child will become theirs to spend at 18 unless you specify otherwise. For many parents, that can be a concern. After all, many 18-year-olds are not emotionally and financially responsible enough to make good decisions at that age. 

That is where you can create a graduated trust. 

What is a graduated trust? 

A graduated trust is a powerful tool that allows you to control how your child receives their inheritance. Instead of giving them the entire sum at age 18, you can stagger the distributions to ensure they are more financially responsible and mature. For instance, you may distribute a portion of the funds at age 20, another at age 25, and the final amount at age 30. 

You can also advise where the trustee can provide funds earlier, for example, to pay for post-secondary education. 

Estate planning and stepchildren 

As noted, the traditional two-parent nuclear family is no longer the norm. What if you have stepchildren that you want to include in your estate planning? How can you ensure that your children are provided for? 

For parents with children from previous relationships, estate planning requires thoughtful discussions and strategic planning. Designating guardians and managing inheritances must be approached sensitively to guarantee that all children are provided for and minimize potential conflicts. It’s a delicate balance of safeguarding the financial future of your loved ones while maintaining harmony among all parties concerned.

Beeksma Law: Your Partners in Estate Planning

At Beeksma Law, we understand the significance of comprehensive estate planning for parents of minor children. Our team is here to guide and support you through this critical process, ensuring your children’s best interests remain at the forefront. Let us be your trusted partners in crafting a secure and harmonious future for your loved ones. Together, we can navigate the complexities of estate law and leave a lasting legacy for generations.

Estate Litigation: When Should You Consider Mediation?

handshake during estate litigation mediation

Disclaimer: This article on estate mediation 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.

Estate litigation is a complex and emotionally charged area of law, especially because it often involves disputes among family members. When conflicts arise over inheritance, wills, trusts, or other estate matters, you might initially be adamant about pursuing your claims in court. 

However, litigation takes a long time. The emotional and financial cost of this process can take its toll. What if there was another way to resolve this conflict? This article explores the role of mediation in estate litigation and how it can help parties find common ground, reduce costs, and ultimately lead to fair resolutions.

The realities of estate litigation

Like other civil litigation cases, the majority of estate disputes are resolved through settlements rather than going to trial. Settlements offer several benefits, including avoiding the unpredictability of court outcomes, reducing legal expenses, and providing closure to the parties involved. 

Reaching a settlement can be difficult. After all, you pursued litigation in the first place because you felt strongly about the issues at hand. However, it is possible to come to an agreement. This is where mediation comes in. Mediation plays a pivotal role in facilitating settlements in many estate cases.

What is mediation? 

Mediation is an alternative dispute resolution (ADR) process in which a neutral third party, the mediator, assists the conflicting parties in reaching a mutually acceptable agreement. It is a flexible and non-adversarial approach that allows parties to communicate openly, identify their interests, and work towards finding common ground.

What are the advantages of mediation in estate litigation?

There are many benefits to participating in mediation, including: 

Emotional Considerations: In estate litigation, emotions often run high due to the familial nature of the disputes. Mediation provides a safe and private environment where parties can express their feelings, facilitating a more empathetic understanding between them.

Cost-Effectiveness: Mediation is generally less expensive than protracted litigation, helping parties save on legal fees and court costs. 

Time-Efficiency: Estate litigation can stretch on for years. Mediation is much faster, especially when parties are willing to engage in open dialogue and negotiation.

Customized Solutions: Mediation allows parties to create tailored solutions that address their unique needs and interests, as opposed to rigid court judgments.

Preserving Relationships: Unlike court battles that can further strain familial ties, mediation promotes collaboration and can help mend relationships between disputing family members.

How does mediation work in estate litigation?

Mediation typically occurs after the initial stages of litigation, where parties have undergone pleadings, motions, and examinations. Mediation sessions may be held multiple times, depending on the case’s complexity and the parties’ willingness to cooperate. Even if mediation does not resolve all of the issues, it does help narrow the disputes that must be resolved at trial. 

Lawyers play a crucial role in guiding their clients through the mediation process. They help their client assess the strengths and weaknesses of their case, set realistic expectations, and provide legal advice throughout the negotiations. 

Avoiding the uncertainty of trial 

Even in cases where one side believes they have a strong case, trials always carry an element of uncertainty. A judge’s decision may not be what you expect, which can bring further frustration and potentially escalate the conflict. 

With mediation, the parties are in the driver’s seat (so to speak). You can create an outcome you can live with and avoid the unpredictability of a trial.

Is mediation mandatory in Ontario? 

While mediation is voluntary in most jurisdictions, some areas may have mandatory mediation requirements. In Ontario, mediation is mandatory for most civil litigation cases that are filed in Toronto. In other jurisdictions, it is voluntary, although a judge may order that the parties participate in mediation. 

Beeksma Law and Your Estate Litigation

If you find yourself embroiled in an estate dispute and seeking a compassionate and skilled legal team to guide you, look no further than Beeksma Law. Our experienced lawyers understand the complexities of family disputes. We can help you find amicable resolutions while safeguarding your best interests. 

Contact Beeksma Law today and discover why we are renowned for providing exceptional legal services in estate litigation. Let us be your partner in navigating this challenging process and finding the best solutions for you and your loved ones.

Help! I don’t want to be a power of attorney!

an elderly man signing a power of attorney in Ontario

Disclaimer: This article on your rights as a power of attorney in Ontario 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 about the importance of selecting the right people – people you trust – to make decisions for you if you cannot make them for yourself. We discussed the importance of selecting the right executor to handle your final affairs according to your wishes. 

In theory, it should all be straightforward. Prepare well-thought-out estate planning documents. However, in practice, things sometimes go differently than planned.

Can I resign as power of attorney?

However, what if your relative appoints you under a power of attorney and you do not want that role? You may no longer feel capable of handling such a weighty responsibility. Family dynamics or other challenging situations make it so that continuing in this role exposes you to legal risks. 

Can you simply walk away? In this article, we will discuss your options in this kind of challenging situation. 

Have you used the power of attorney? 

The first question you’re going to ask is: “Have I used this power of attorney at any point?”. Or has your relative been capable enough to make decisions at this point? 

If you have not used the power of attorney

If the power of attorney has not been used at all, renunciation may be an easy way to step down. That means you formally resign in writing and notify the grantor, any other power of attorney and any named substitutes. 

The important thing is that you cannot have used the power of attorney to make decisions for the grantor at any point. 

If the power of attorney has been used

If you have used the power of attorney, things can become a little more complicated. 

The quickest and easiest solution is to have the grantor prepare a new power of attorney, if they are capable of doing so. However, if there are complex family issues, you may not be able to compel the grantor to prepare a new power of attorney. 

In that instance, you would need to seek an order asking the court to remove you as a power of attorney. While the court may agree that it is worthwhile to remove you, they may be concerned that there is no longer anyone to act in the grantor’s best interests. 

One possible solution may involve appointing a neutral trustee to manage the grantor’s affairs. This would provide a buffer between you and the grantor. A professional trustee can act in the best interest of the grantor without having any emotional entanglements. 

Estate Planning Lessons

It’s crucial to learn from real-life scenarios where even well-prepared estate documentation may not align with the complexities of relationships and other factors. We recently spoke to someone who faced such a situation, realizing that continuing as the power of attorney was not in her best interests and exposed her to risk.

This serves as a stark reminder that the best-laid plans can often go awry. Therefore, seeking advice from an experienced estate lawyer when facing challenging situations is invaluable. They can help navigate legal complexities, explore viable options, and ensure the best possible outcomes for all involved parties.

Knowing how to respond and protect ourselves and our loved ones is essential. By consulting with our team of experienced estate lawyers, you can gain valuable guidance to make well-informed decisions. You are then able to secure a more stable and secure future for everyone involved. Remember, in complex situations, legal advice can be the guiding light to find the best path forward. Reach out to our team today to get answers to your estate law questions.