February, 2024
now browsing by month
What is probate in Ontario? What is probating a will in estate law?
Disclaimer: This article answers the question, “what is probate?” It 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.
Losing a loved one is never easy. Amidst the grief and emotional turmoil, the practicalities of handling their affairs can feel overwhelming. And then there’s this term you keep hearing: probate. It seems like everyone is saying you need to go through probate or asking if you have probated the will or gone to probate court. What does that mean? These questions swirl in your mind, adding to the already mounting stress.
You’re not alone in this journey. At Beeksma Law, we understand the confusion and uncertainty that comes with navigating probate after the loss of a loved one. It’s a daunting process, filled with legal complexities and unfamiliar terminology. In this article, we’ll go over what probate means and what is involved in probating an estate.
What is probate?
Probate is the legal process through which the courts officially recognize a will, or in cases where there is no will, appoint someone to handle the deceased’s affairs. This procedure aims to confirm the death of the testator, verify the authenticity of the will, and ensure its validity. It grants the executor or administrator (in the case of an estate without a will) the authority to manage and distribute the deceased’s assets.
Can I avoid probate?
We hear this question all the time: do I really need to go through probate?
In Ontario, probate isn’t always necessary, but we typically recommend it for most estates. You cannot avoid probate simply because the estate is small, there is no real estate, or there is only one beneficiary.
Probate becomes necessary when you need court approval to transfer the assets of the deceased to the estate trustee. This could be to validate the will, choose the executor, or resolve disputes among beneficiaries, especially if some are minors or incapacitated.
However, some estates, like those where all assets easily pass to the surviving spouse or those with minimal assets or debts, may not require probate. For example, couples may jointly hold any bank accounts and real property. Yet, if real estate is involved and doesn’t automatically transfer to the surviving spouse by right of survivorship, probate is usually necessary.
However, here’s the catch: even if everyone agrees and the estate seems straightforward if a financial institution demands probate, you must go through the probate process. While some banks may waive probate for small estates without beneficiary conflicts, this is at their discretion. If they require probate, it’s best to proceed promptly rather than dispute with the financial institution.
How do I apply for probate?
To apply for probate in Ontario, there are several steps you need to follow.
Prepare the probate application
The first step is to prepare the probate application, which involves gathering various documents, including the deceased’s original will, any additional documents related to the will, and proof of death such as a death certificate. Additionally, you’ll need to complete specific court forms required for the probate application.
Determine the value of the estate
Determining the value of the estate is another crucial aspect of the probate application process. This involves assessing the total value of all assets owned by the deceased at the time of death. This would include:
- real property like land and buildings,
- any bank accounts
- personal property such as jewelry, artwork, and furniture.
- life insurance, if there is no beneficiary named
This is important because it will determine how much estate taxes must be paid.
Notify any relevant parties (such as beneficiaries)
Before submitting the probate application to the court, it’s necessary to notify all relevant parties who are entitled to a part of the estate, including estate beneficiaries. You can notify them through email, mail, or courier.
File your probate application
Once the probate application and required court forms are completed, they can be filed with the Superior Court of Justice in the county or district where the deceased lived at the time of death. This can be done in person, by mail, or email.
Pay the estate administration tax
Finally, you must pay the Estate Administration Tax, also known as probate tax, when submitting the probate application. This tax is based on the value of the estate. An administrative bond may also be required – we discussed administrative bonds in this article.
What if the deceased person did not have a will?
First, determine that there truly is no will. We discussed substantial completion here, but to summarize, the courts may consider a finalized will as valid, even if it was not fully executed. If there’s any uncertainty regarding whether the deceased person had a Will, it’s prudent to diligently search for one and document these efforts. It is necessary to demonstrate to the courts that all reasonable measures were taken to locate a will, to no avail.
If there was no will, this process would be more complicated. (In fact, this is one of the most compelling reasons to prepare an estate plan – to avoid additional complications and probate costs.) It will take longer to go through the probate process than if there was a will.
If you are applying to become the estate trustee, you must notify all estate beneficiaries about your intentions and obtain original signed consents from beneficiaries holding a majority interest in estate assets. If there are minor or mentally incompetent beneficiaries, notice of the application must be served to their parent or guardian and to The Children’s Lawyer or Public Guardian and Trustee. A bond is much more likely to be required in this instance.
Receiving a certificate of appointment of estate trustee
Once you have filed the proper documents with the court and have paid the probate fee, you will receive a certificate granting you the authority to administer the estate. You are now permitted to act on behalf of the estate.
Questions about probate? Get in touch with Beeksma Law today!
For all your probate questions and concerns in Ontario, Beeksma Law is here to provide expert guidance and support. With our extensive knowledge and experience in estate law, we can help you navigate the probate process.
Whether you’re preparing a probate application, dealing with complex estate matters, or simply seeking clarity on legal issues, you can trust Beeksma Law to offer personalized assistance tailored to your needs. Don’t hesitate to reach out to our team for reliable counsel and peace of mind during this important time,
Answer to Commonly Asked Questions About Cohabitation Agreements in Ontario
Disclaimer: This article on cohabitation agreements 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, there’s been a noticeable trend away from traditional marriage, with more couples choosing to live together instead. Whether driven by shifting societal norms, financial considerations, or personal preferences, cohabitation has become increasingly commonplace. However, this shift highlights the importance of protecting individual rights and interests, especially without the legal protections that marriage provides.
In response to this need, many more couples are choosing to enter into cohabitation agreements to navigate their shared living arrangements. These agreements offer clarity and protection, ensuring that both partners’ rights and responsibilities are clearly defined and upheld.
In this article, we’ll delve into the commonly asked questions about cohabitation agreements in Ontario, providing clarity and insight for those embarking on this journey.
1. What is a Cohabitation Agreement?
A cohabitation agreement is a legally binding agreement between the parties. The parties are two individuals who are living together in a romantic relationship but are not married. An agreement between married couples is referred to as a marriage contract. This agreement outlines various aspects of their cohabitation, including property division, financial responsibilities, and support obligations. It serves as a proactive measure to clarify each party’s rights and obligations in the event of a relationship breakdown or separation.
2. What Should I include in a Cohabitation Agreement?
Cohabitation agreements can cover a wide range of topics, depending on the needs and circumstances of the parties involved. That is why we warn against using templates – your agreement should be as unique as your relationship itself. However, your cohabitation agreement may include provisions relating to:
- Division of property: Specifies how assets and debts acquired during the relationship will be divided in the event of a breakup.
- Financial support: Addresses issues related to spousal support or financial assistance in case of separation.
- Property ownership: Clarifies ownership rights and responsibilities regarding jointly owned or shared assets.
- Rights and responsibilities during the relationship: Defines each party’s obligations regarding household expenses, financial contributions, and other matters.
- Dispute resolution: Establishes procedures for resolving disputes that may arise during the cohabitation period or upon separation.
A cohabitation agreement does not include provisions related to child custody or child support.
3. Who Should Consider a Cohabitation Agreement?
Cohabitation agreements are recommended for any couple who intends to live together in a committed relationship without getting married. Whether you’re purchasing property together, sharing financial resources, or simply want to protect your individual interests, a cohabitation agreement can provide peace of mind and clarity for both parties. It’s especially important for individuals with significant assets or children from previous relationships to safeguard their interests through a formalized agreement.
Unlike married spouses, unmarried partners are not covered by the property division provisions of the Family Law Act in Ontario. This means that if unmarried couples separate, they don’t automatically have a legal right to divide property acquired during the relationship. Instead, property rights and any agreements between partners determine how assets are divided. Without clear documentation, property disputes can become complicated. That’s why it’s important for unmarried couples to consider creating a cohabitation agreement. This agreement helps outline property division and other important issues, ensuring fairness and clarity for both parties.
4. Are Cohabitation Agreements Legally Binding in Ontario?
Yes, cohabitation agreements are legally binding in Ontario, provided they meet certain criteria outlined in the province’s Family Law Act. To be enforceable, the agreement must be in writing, signed by both parties, and witnessed. It should also be entered into voluntarily, without coercion or duress. Additionally, each party should fully disclose their financial information and seek independent legal advice before signing the agreement.
5. Can a Cohabitation Agreement Be Challenged in Court?
While cohabitation agreements are generally enforceable in Ontario, they may be subject to challenge under certain circumstances. If one party alleges that the agreement was signed under duress, coercion, or without full disclosure of assets, a court may invalidate all or part of the agreement. Similarly, if the terms of the agreement are found to be unconscionable or unfair at the time of signing, a court may refuse to enforce those provisions.
This is why it is advisable to seek legal advice before you sign a cohabitation agreement. This way, you can protect your interests by ensuring you and your common-law spouse have a clear plan if the relationship ends. It is certainly in your best interests to avoid a complex court battle.
6. What Happens If We Decide to Get Married?
If a couple who is in a common law relationship decides to get married, the agreement may be converted into a marriage contract or prenuptial agreement. Alternatively, they may choose to draft a new agreement that reflects their changed marital status and intentions. It’s important to review and update any existing agreements to ensure they remain valid and enforceable in light of changing circumstances.
7. How Do I Get Started with a Cohabitation Agreement?
Creating a cohabitation agreement involves several steps, starting with open communication and mutual understanding between you and your common law partner.
It’s best if each party receives independent legal advice from a qualified lawyer, although it is not required. The lawyer can assist in drafting the agreement, ensuring that it complies with Ontario’s legal requirements and adequately protects the interests of both parties. Once the agreement is finalized, it should be signed, witnessed, and kept in a safe place for future reference.
If you’re considering cohabitation or already living with your partner, Beeksma Law is here to assist you in preparing a cohabitation agreement tailored to your specific needs and circumstances. With our expertise and dedication to client satisfaction, you can trust us to guide you through the process with professionalism and care. Get in touch with us today to ensure that your rights and interests are protected as you embark on this new chapter of your relationship.
What is the difference between an easement and a right of way?
Disclaimer: This article on easements vs. rights of way 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.
As a homeowner or landowner, it’s important to know who can come onto your property and why. In this easy-to-understand guide, we’ll explain the basics of property rights, helping you understand who’s allowed on your land and for what reasons. We’ll walk through the difference between an easement and a right of way.
At Beeksma Law, we specialize in real estate issues that are unique to rural properties – such as shared well agreements – and can provide advice on your rural property.
What is the difference between an easement and a right of way?
At first glance, easements and right of ways may seem interchangeable. They both allow someone else the right to use your property, but they have distinct purposes in property law.
What is an Easement?
An easement grants specific rights to someone other than the property owner, allowing access or use of a portion of the property for a particular purpose. This could include granting your hydro company the right to access your land for maintenance or allowing a neighbor to use a shared driveway. In legal terms, there’s a dominant tenement (the property benefiting from the easement) and a servient tenement (the property burdened by the easement).
What is a Right of Way
On the other hand, a right of way permits someone to pass through your property to reach another destination. We see these on occasion in recreational properties, such as cottages. In this scenario, the waterfront owner grants an easement to the landlocked property, allowing them access to the shorefront.
Easement vs. Right of Way: Why Does it Matter?
Understanding the difference between easements and right-of-way is essential, especially when you’re buying or selling a property. Firstly, they have legal implications since they’re registered on property titles, which could lead to disputes or surprises down the line. Secondly, they dictate how you can use your property, whether it’s for utility access or shared spaces, so clarity is key for getting along with your neighbors. Lastly, while they might not always directly impact property value, they can influence how potential buyers see the property, so being well-informed helps you make smart investment choices.
Types of Easements
There are different easements that can be registered against your property. Let’s consider just a few examples.
Utility Easements
This is the most common type of easement and one that virtually every property has registered on title. Your property likely has an easement allowing the utility company to access underground lines. While you own the land, the utility company has the legal right to conduct maintenance as needed.
Shared Driveways
Usually, when a property owner divides a lot and establishes a shared driveway between the properties, it’s known as severing a lot. When this happens, the express grant is recorded on the property’s title. It’s important to note that all agreements regarding land interests must be documented in writing; verbal agreements are not legally acceptable. Easements should be registered on the titles of both the dominant and servient properties, with the dominant land listed as “together with” in the description and the servient land listed as “subject to” to ensure proper recording of the easement.
Conservation Easements
Conservation easements are gaining popularity, restricting development on a property to preserve natural resources. While limiting your usage, they serve broader environmental goals.
Navigating Easements and Right of Ways: Tips for Homeowners
When dealing with property transactions involving easements or right-of-ways, several important factors must be considered. First and foremost, it’s crucial to do your due diligence before finalizing any purchase. This means performing a comprehensive title search to uncover any existing easements or right-of-ways that could affect the property.
Next, it’s essential to have a clear understanding of your responsibilities regarding maintenance, access, and usage rights outlined in the easement or right of way agreement. Seeking advice from a real estate attorney can provide valuable insight if you’re unsure about the implications of these agreements, ensuring that your rights and obligations are clearly defined. Additionally, any modifications or agreements related to easements or right of ways should be documented and legally binding to prevent potential disputes down the line. Finally, it’s important to consider how these easements or right of ways might impact your long-term property plans, allowing you to make informed decisions during the transaction process.
Beeksma Law: Your Partner in Rural Property Law
When it comes to legal advice for your rural property, Beeksma Law is your go-to source. With their wealth of experience and dedication to client satisfaction, they offer invaluable guidance on easements, right of ways, and all property-related matters. Whether you’re buying, selling, or managing rural property, you can trust Beeksma Law to protect your rights and ensure your interests are always taken care of.
New Federal Tax Changes for Canadian Short-Term Rentals
Disclaimer: This article on federal tax changes to short-term rentals 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 Ontario, the housing crisis looms large, with rental expenses soaring and homes in short supply. Despite efforts by many provinces and municipalities to place restrictions on short-term rentals like those on Airbnb and VRBO, the problem persists.
Changes Announced for Short-Term Rental Tax Deductions
As part of its fall economic statement in late 2023, the federal government announced new income tax measures. These came into effect as of January 1, 2024, and may impact you if you own a property that you rent out for short periods (generally defined as fewer than 28 days). Aimed at addressing housing inventory challenges and regulating the STR industry, these measures have sparked a mix of reactions within the cottage community.
In a nutshell, if you own a property in a municipality where such rentals are prohibited and rent it out for short periods of time, you will no longer be able to claim any expenses against your rental income. This also applies to short-term rental operators who fail to comply with applicable provincial or municipal licensing, permitting, or registration requirements; they will also lose tax benefits.
For example, suppose you own a cottage in a municipality that restrictions vacation rentals. You earn rental income from occasional stays. In such a scenario, the new tax measures mean that you will no longer be eligible to deduct any expenses associated with your rental income. These expenses typically include property taxes, mortgage interest, maintenance, utilities, and insurance. Similarly, if you earn short-term rental income but fail to adhere to local regulations, such as obtaining the necessary licenses or permits, you will also forfeit any income tax deductions for expenses incurred.
The reasoning behind this move is to discourage homeowners from using their rental properties in this way and promote the availability of housing for permanent residents.
Are Short-Term Rentals Permitted in Your Municipality?
You may wonder – can I list my property on a rental platform in my municipality? Will I still be able to claim expenses related to this income? Below we will consider some municipalities and their bylaws.
Note: Please check with your municipality to ensure that there have not been any recent updates to their bylaws and requirements.
Hamilton
Hamilton introduced a licensing pilot program for principal residence units in late 2023.
The term “principal residence unit” denotes a specific dwelling within a property where an individual resides and carries out their daily activities. This restriction on short-term rentals confines operators to obtaining only one license, which must correspond to their primary dwelling. Consequently, it prevents commercial or multiple listing operators from obtaining licenses for STRs.
Huntsville
Accommodation providers must ensure registration, while units will be inspected to ensure they comply with building codes. Any operator offering stays of fewer than 30 days must impose and collect Municipal Accommodation Tax (MAT). This 4% MAT applies exclusively to accommodation revenue, excluding additional charges such as cleaning fees, security deposits, or other taxes and fees.
Owen Sound
Effective March 1, 2024, short-term rentals within the City of Owen Sound are required to obtain licensing in accordance with the City’s Short-Term Rental Licensing By-law. These are restricted to the property of the operator’s principal residence, which serves as their primary address for bills, identification, taxes, and insurance.
Furthermore, short-term rentals are limited to operating for a maximum of 180 days per year and operators must maintain a detailed log. Additionally, operators are obligated to furnish each group of visitors with a visitor’s guide and a code of conduct. Lastly, owners must adhere to specific requirements, including the provision of a site plan, fire-safety plan, and parking management plan.
Collingwood
In Collingwood, short-term rentals (STRs) are currently prohibited, despite the prevalence of illegal operations. However, a bed and breakfast (B&B) business may be permissible under certain conditions, such as not occupying the entire gross floor area of a single detached dwelling unit. The municipality has proposed a new licensing system, intending to issue 200 licenses annually.
These licenses would be categorized into three types based on the nature of the unit. Entire-unit options would be subject to a maximum rental period of 180 days per year, and owners must apply and pay for a license annually, ensuring compliance with the bylaw, Ontario Building Code, and fire codes through inspections. Additionally, the property being rented out must serve as the owner’s principal residence.
Beeksma Law: Your Rural Real Estate Partners
Prospective rural real estate buyers encounter a unique set of considerations that are different from urban property purchases. Beyond the basic aspects of location and property size, factors, like shared well agreements, septic systems, and zoning regulations, become crucial when deciding whether or not to purchase or retain an investment property.
Shared well agreements, for instance, necessitate a thorough understanding of the responsibilities and rights associated with communal water sources, ensuring equitable access and maintenance among multiple property owners.
At Beeksma Law, we have assisted many rural property owners in addressing the intricacies of such purchases, offering invaluable guidance to clients seeking to make informed decisions in this specialized market. With their depth of knowledge and commitment to client satisfaction, Beeksma Law stands ready to assist buyers in achieving their rural property ownership dreams. Reach out to them today to embark on a seamless journey towards rural real estate ownership.