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Disclaimer: This article discusses Estate Planning.  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.

Let’s talk about your legacy. 

What will you be remembered for? What will your loved ones think of you after you’ve passed away? 

We want to help you leave behind peace of mind and clarity. We want your loved ones to know and understand your wishes and be able to carry them out without too much stress.

To do that, you need a comprehensive estate plan. Creating a comprehensive plan helps ensure that your wishes are honoured and your loved ones are taken care of after your passing.

It also simplifies the process for your estate trustee (commonly referred to as your executor), the person responsible for carrying out your wishes. We have discussed before how important that role is and how it is a serious responsibility that spans from going through the probate process to distributing your assets. 

This article will explore how to build an estate plan that makes your estate trustee’s role easier.

Have a comprehensive estate plan, including a will and other legal documents

Of course, you do not want to die without a will. Doing so creates many headaches for your estate trustee and beneficiaries, including paying more estate tax, not having a guardian for your minor children and can lead to family disputes.

However, an effective estate plan encompasses more than just a will. While the will is a central component outlining how you want your assets distributed, there are other critical documents to consider:

• Power of Attorney for Property and a Power of Attorney for Personal Care: These documents will appoint someone to make decisions on your behalf if you become incapacitated. This makes your estate trustee’s role easier when you pass because your financial and personal affairs will already be managed in accordance with your wishes, minimizing confusion and ensuring a smooth transition.
• Gift acknowledgments or trust agreements (if necessary): In a previous article, we discussed the importance of making your wishes known. Drafting supporting agreements and documents can ensure that there is no confusion as to your true intentions.  

These documents ensure that every aspect of your estate is handled according to your preferences and provide clear instructions for your executor. Depending on the complexity of your estate, you may also choose to have other documents drafted. You would need to an estate lawyer well-versed in this area (such as ourselves). 

Avoid common estate planning mistakes 

You’ll want to consider how you can avoid these common mistakes related to estate and will planning. 

Not updating your will and powers of attorney: Life changes such as marriage, divorce, or the birth of a child should prompt a review and potential update of your will and other documents. You may need to add to your will, such as if you need to name a guardian for your minor children.

This could include a change in your life or the life of your attorney. For example, if your power of attorney for personal care moves to another province, it’s a good idea to name someone you trust who is closer and can be more hands-on in your care.

Not naming contingent beneficiaries, attorneys and estate trustees: Always name a backup or alternate. Your original appointment may predecease you or simply prevent you from taking on the role. 

Overlooking important decisions or assets: You may have a will, but it may be missing key decisions or assets, such as digital assets, joint bank accounts, pets and more. 

Ignoring tax implications: Consult with a financial advisor (we have trusted advisors we can recommend) to understand the tax implications for your beneficiaries and plan accordingly. This is especially important when there are changes in legislation. 

By addressing these issues, you can prevent unnecessary complications and ensure your estate is distributed as intended.

Make all of your important documents easy to find

For your executor, locating all the necessary documents (estate planning documents, life insurance policies, etc.) quickly is crucial and can prevent unnecessary delays. To make the process smoother, organize and store all estate planning documents in a secure, easily accessible place, and ensure your executor knows their location. Additionally, you may consider creating a master document list that compiles all your documents, accounts, and assets, including contact information for your attorney, financial advisor, and insurance agents.

Beeksma Law: Strategic advice for your estate planning process 

At Beeskma Law, we specialize in providing strategic advice to help you navigate the estate planning process. Our goal is to make sure your wishes are clearly defined and your executor’s role is as straightforward as possible.

Here’s how we can assist you: We offer personalized consultations, taking the time to understand your unique situation and tailoring our advice to meet your specific needs. Our comprehensive planning ensures that all aspects of your estate plan are addressed, guiding you through the entire process. Additionally, we provide ongoing support, helping you update your plan as life changes and new laws come into effect.

Creating an estate plan doesn’t have to be daunting. With careful planning and the right support, you can ensure your executor has clear instructions, reducing stress and potential conflicts during a difficult time.

Disclaimer: This article discusses estate planning.  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.

You sat down, put together a will (either with a lawyer or using a kit) and now you’re done. 

Right? 

Or do you need to update your will and other documents to reflect significant changes in your life? When should you consider updating your will and when should you have a new one drafted? And do you need any other documents to complete your estate planning?

Do you have a full estate plan? 

Many people think they only need a will; however, you need both a will and powers of attorney.

Powers of attorney ensure that your wishes are carried out if you are incapacitated and unable to make those decisions for yourself. There are two types of power of attorney documents that you will want to have prepared: a Power of Attorney for Personal Care and a Power of Attorney for Finances. 

If you want to learn more about the types of powers of attorney and when they are used, you can learn more at these articles: 

• Your Powers of Attorney: Important Documents You Need in Ontario
• The real cost of not having powers of attorney in Ontario
• A Will vs. A Power of Attorney: What’s the difference?    

A will, on the other hand, only comes into effect once you pass away and cannot help if you are incapacitated but still living.  

Why is it important to update your will and estate plan?

Our lives are always changing, and if you don’t update your estate planning documents to keep up with those changes, it can create problems for your loved ones.

For example, imagine you have a new baby but forget to update your will to include them. This can cause confusion about who will take care of your child and manage their inheritance if something happens to you.

Or, think about your estate trustee—the person you chose to handle matters after you are gone. If they experience life changes and they can no longer do the job, the process will be delayed because a new person will need to be appointed. This can make things more stressful and take longer for your family to get what you left for them.

Another example is if you buy a new house or start a business and don’t update your estate plan. These new assets might not be given out the way you want, leading to disagreements among your family members.

By keeping your documents updated, you make sure that your wishes are clear, helping to avoid confusion, arguments, and delays for your loved ones.

Have you had a major life event? 

Have you had a major life event?

Certain big life events mean you should update your will. Here are some examples:

1. Getting Married or Divorced: If you get married or divorced, you might want to include or remove your spouse from your will.

2. Adoption or Birth of a Child: If you have a new baby or adopt a child, you’ll want to make sure they are included in your will for their care and inheritance.

3. Someone Passes Away: If a person named in your will dies, you need to choose new people.

4. Buying a New House or Getting Money: If you buy a new house, start a business, or receive a large amount of money, you should update your will to include these new assets.

5. Health Changes: If your health or the health of someone named in your will changes a lot, you might need to make some adjustments.

6. Changes in Relationships: If your relationship with someone named in your will changes, like falling out with a friend or reconnecting with a family member, you should update your will.

By keeping your will updated, you make sure your current wishes are known and can be followed, which helps your loved ones understand what you want.

Do you need to update your estate trustee (or executor)? 

One of the most important decisions that you will make is choosing someone to administer your estate. That person will handle many important tasks once you pass away, from applying for probate to distributing your assets to the beneficiaries. 

Therefore, it is a good idea to ask whether you need to make a new appointment. Perhaps the person that you originally had in mind no longer lives nearby or has the circumstances to shoulder this weighty responsibility. Perhaps you are no longer on good terms. Perhaps your finances have become more complicated and you want to hire a professional to handle matters.

Whatever the reason, consider whether you need to reconsider your choice. 

We have articles on this topic, which you can find here: 

• Should I appoint a trust company as my power of attorney for property or estate trustee (executor)? 
• What You Need to Know When Choosing Your Executor

Do you need to make changes now that your children are older?

As your children grow older, it’s important to update your will to match their changing needs and circumstances. You might no longer need guardianship provisions if your children are now adults. It’s a good time to adjust any trusts or financial support plans set up for them when they were younger, ensuring they have direct access to their inheritance or managing funds differently. Updating your will to reflect your children’s current situations, like their careers, education plans, or where they live, is also key.

Consider naming your adult children as executors now that they’re capable, roles that were once held by other adults. Include any new family members, such as spouses or grandchildren, so everyone is provided for as you intend. And as family relationships evolve, updating your will to reflect these changes, like adjusting inheritances or responsibilities, ensures your wishes are clear. Regular updates to your will help ensure your family is looked after according to your wishes.

Has it been more than three years? 

As a general rule, review your will every three years, even if you have not experienced any significant changes. This protects you if the law changes or there are new tax regulations. Therefore, updating your will ensures it remains compliant and takes advantage of any new opportunities or protections. Regularly reviewing your will every few years helps you make sure that it accurately reflects your current wishes and circumstances.

Is it time to update your estate plan? We are here to help you get started!

At Beeksma Law, we focus on estate law and guide families toward a legacy of peace of mind rather than stress and complexity. Whether you require a simple codicil to amend your will or a completely new one to invalidate an outdated version, we are here to assist you every step of the way.

With decades of collective experience, our team offers extensive expertise in estate litigation. This enables us to identify potential issues in your documents and craft strategic, transparent solutions that minimize confusion for your beneficiaries.

To discuss your estate plan, please reach out to our office today. We are more than happy to discuss your needs during our complimentary call. 

Disclaimer: This article discusses Estate Planning.  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.

As your parents get older, you tend to step in and handle more day-to-day tasks for them. Maybe it’s booking appointments and coordinating their medications. Maybe it’s more involved, including managing their finances. 

For many families, sharing a bank account with a parent can be convenient for managing finances and help you care for your parent’s needs. You may also think that it can help you avoid probate fees later on. 

However, are there any risks and potential legal complications that you need to know about? What happens when your parent passes away? How is that joint bank account treated as it relates to their estate? 

We will answer those questions in this article and discuss ways to minimize those risk for parents and their children. For more information, we encourage you to reach out to our team for a complimentary call. 

What does the law presume about a joint bank account with an elderly parent?

Suppose a parent adds their son or daughter to their bank account. When that person dies, the law typically presumes it to be a resulting trust rather than a gift.

What is a resulting trust? It is a legal concept where one party holds property for the benefit of another. Adding a joint owner does not give the recipient full ownership; rather, the trustee holds the property in trust for the original owner.

What does this mean in the context of joint bank accounts? The courts will presume that the money in the account was to be held by the adult child in trust for the parent, not as a gift. The child is expected to manage the funds for the parent’s benefit, and the funds remain part of the deceased’s estate.

This presumption of resulting trust can only be overturned with clear evidence that the parent intended the funds as a gift.

What are the risks of having a joint account?

Both elderly parents and adult children face significant risks when creating joint accounts without proper documentation:

The parent’s intent could be misinterpreted.

Without explicit documentation, there can be confusion about whether the account addition was meant as a gift or a trust arrangement. This can lead to disputes among family members after the parent’s incapacitation or death. The adult child could claim that the funds were held jointly and meant as a gift (perhaps because they acted as a caregiver or other reasons), while other siblings or beneficiaries might disagree. This can result in a costly estate litigation process.

If the funds were intended as a gift and weren’t documented, they could become part of the parent’s estate.

If the funds were intended as a gift, adult children must ensure there is clear documentation, such as a gift acknowledgment, to support this claim. Without such evidence, the court is likely to presume that the funds were held for the benefit of the parent and should form part of the estate.

If the court determines that the account is a trust and should be part of the estate of the deceased, the adult child could lose access to those jointly held funds and no longer be one of the account holders. They would be required to return the money to the estate, which would then be distributed according to the parent’s will or probate laws. 

This outcome would be less than ideal for the adult child, especially if they believed the money was rightfully theirs. Additionally, the legal process to resolve such disputes can be lengthy and costly, adding further strain to family relationships and financial resources.

How can you avoid these pitfalls?

Simply put, make sure to clearly document the parent’s intentions. 

If the funds are a gift…

If the parent intends to gift the funds in the account to their child, they should create a gift acknowledgment. This document clearly states that the funds are a gift, helping to prevent disputes later on.

If the funds are not a gift…

If you are to manage the account on behalf of your parent, have a lawyer draft a trust agreement. This agreement should outline that the funds remain the parent’s property and are not a gift.

Either way, engage a lawyer to draft these documents and ensure they comply with legal standards. This investment can save significant time, money, and emotional stress in the future.

Minimize your risks with strategic estate planning. Contact Beeksma Law today!

Proper estate planning and clear documentation can significantly reduce the risks associated with joint bank accounts between you and your parents. At Beeksma Law, we specialize in helping families navigate these complex issues and ensure that their intentions are honored. Whether that is drafting your will and powers of attorney (POA) or advising you on estate administration as a trustee, we are here with strategic, personalized legal advice. 

Note: There are new tax rules relating to joint account holders, new trust reporting rules and bare trusts that the CRA (Canada Revenue Agency) announced in March 2024. We encourage you to speak to your tax advisor regarding these changes. 

Contact us today to discuss how we can assist you in creating a strategic estate plan that protects your interests and maintains family harmony.

Disclaimer: This article discusses Estate Planning.  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.

We have discussed the importance of choosing the right power of attorney (POA) or estate trustee to act on your behalf if you cannot do so or manage your estate if you pass away. These roles come with many duties and responsibilities. 

In some cases, you may choose a close relative or friend. However, in other cases, it may make more sense to consider appointing a trust company.

A trust company is a professional organization responsible for managing the administration of estates, trusts, and other fiduciary responsibilities. Appointing a trust company as your power of attorney for property or estate trustee (executor) has both advantages and disadvantages that are important to consider.

Note: a power of attorney for personal care is also an essential part of your estate plan. However, in most instances, a professional trust company will not be appointed for these decisions.

Personal care decisions typically involve intimate and sensitive choices about health care, living arrangements, and other personal matters. These choices are best made by someone who knows you well and understands your individual wishes and values. This article will focus on a trust company’s role in managing your finances and property and estate matters.

Reasons to consider appointing a trust company as your power of attorney or as your estate trustee

Below are some reasons you may choose a professional as your estate trustee or power of attorney. 

You need someone local to make decisions on your behalf. 

Having someone local manage your affairs can be incredibly beneficial. A local company has the advantage of being physically present and easily accessible, allowing for timely decisions and actions. A local power of attorney can attend to financial matters that require in-person attention, such as money or property management, and can address any immediate issues that arise with your assets or estate.

They are also well-versed in your area’s specific laws, regulations, and market conditions. This knowledge can be crucial for effective estate and property management, ensuring that all actions comply with local legal requirements and are optimized for local economic conditions.

Trust companies often have established relationships with local professionals, such as real estate agents, lawyers, and accountants. These connections can streamline processes and make the estate administration run more smoothly. 

Your finances are complex and require greater expertise.

A trust company’s professional expertise is invaluable if your financial situation is complex, involving multiple investment accounts, real estate holdings, business interests, or other sophisticated financial instruments. Additionally, complex estates often involve intricate tax considerations. Trust companies have tax and investment experts who can develop strategies to minimize tax liabilities, ensuring that more of your estate is preserved for your beneficiaries.

Trust companies bring specialized knowledge in trust law, estate planning, and fiduciary responsibilities. This expertise helps execute sophisticated techniques, such as establishing and managing various types of trusts, handling charitable donations, and ensuring compliance with legal obligations.

You want to appoint someone who will be neutral and impartial. 

A trust company serves as a neutral third party, which is essential in situations where impartiality is required or where there may be conflicts among beneficiaries. Unlike family members or friends, a trust company does not have a personal relationship with any parties or emotional involvement in the decisions being made. 

Building your estate plan with Beeksma Law

Working with professionals as your power of attorney or as your estate trustee (executor) is a significant step in ensuring that your financial affairs and property are managed effectively and impartially. 

For tailored legal advice, establishing an enduring power of attorney, or any other estate planning needs, it’s crucial to consult with experienced estate law lawyers. At Beeksma Law, our team focuses on estate planning and can guide you through every aspect of creating a comprehensive estate plan. Whether you need assistance drafting a will, selecting a power of attorney, or appointing an executor, we are here to help.

Contact us today to learn more about how we can assist you with your estate planning needs. We are ready to provide the guidance and support you need to protect your legacy.

Disclaimer: This article discusses Estate Law.  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.

As an estate trustee (or executor), you have many responsibilities and duties. One of those is ensuring that you keep accurate records. This article will provide a general overview of what records you must keep and discuss a recent case that highlights how the courts view this responsibility. 

If you are an estate trustee and want to ensure that you are properly fulfilling your duties, we encourage you to contact our office for a complimentary consultation.  

Recordkeeping for Estate Trustees in Ontario 

Estate trustees have a fundamental duty to maintain comprehensive records of the estate and provide detailed accounts to the residual beneficiaries. This responsibility includes having the accounts approved by the Court at the end of the estate administration or reasonable intervals if the administration is prolonged.

There are two types of beneficiaries. Residual beneficiaries, entitled to a share of the estate residue after debts and specific bequests are settled, must receive accurate accounts of all transactions related to the estate. On the other hand, specific bequest beneficiaries inherit particular items or amounts of money and generally do not have the right to a complete accounting once they have received their bequest. 

For residual beneficiaries, estate trustees must meticulously document each step of the estate administration, ensuring detailed records of all assets, income, and disbursements. The accounts should also include comprehensive information and receipts for all legal and professional fees and any executor compensation paid from the estate.

Huang v. Nie and the handling of estate accounts 

Recently, the Ontario Superior Court of Justice ordered a widow to submit detailed accounts of her late husband’s estate after she failed to provide this information to her 17-year-old stepson, an estate beneficiary. 

Weirong Huang died in 2019, leaving an estate valued at over $600,000, including two bank accounts and real estate. In May 2020, the respondent, Huang’s widow, applied for a Certificate of Appointment as an estate trustee without a will. She proposed to hold the estate’s assets as a property guardian, intending to retain the matrimonial home. The Office of the Children’s Lawyer (OCL) scrutinized this proposal, raising concerns about the valuations and the protection of the applicant’s interests.

Despite repeated requests from the OCL in 2022 and 2023, the respondent failed to provide the necessary estate details, such as a copy of her application for appointment as estate trustee, a list of the estate assets and debts, and a summary of all transactions since the deceased’s passing. The OCL issued a final warning in February, threatening court proceedings if she continued withholding information. However, the respondent did not file a notice of appearance or any other documents after being served with the application record.

The Superior Court emphasized the estate trustee’s duty to maintain accurate records and be ready to account for the trust’s property. While the general rule is that trustees are not required to file accounts unless requested by an interested party or creditor, section 50(1) of the Estates Act allows the court to compel an executor to submit detailed accounts. The judge noted that over four and a half years had passed since Huang’s death, during which the widow ignored correspondence from the OCL and neglected her son’s interests.

Consequently, the court ordered her to file the estate accounts within 45 days and imposed $5,000 in legal costs on her personally, payable to the OCL. The judge acknowledged that further measures, such as contempt proceedings, could be pursued if she failed to comply.

Lessons regarding handling the duties of estate trustees  

The Huang v. Nie case highlights the vital nature of estate trustees’ responsibilities in Ontario. Proper record-keeping and responsiveness are not merely administrative tasks; they are legal obligations that, if neglected, can result in significant legal repercussions. Estate trustees must prioritize transparency and diligence to fulfill their duties effectively and protect the interests of all beneficiaries involved. By adhering to best practices and legal requirements, estate trustees can navigate their responsibilities with confidence and integrity.

Contact Beeksma Law today for your estate administration needs!

In conclusion, serving as an estate trustee in Ontario demands meticulous attention to detail and adherence to legal obligations. The recent case of Huang v. Nie underscores the importance of maintaining accurate records and transparently managing the estate’s affairs. At Beeksma Law, we understand the complexities and responsibilities involved in estate administration and are here to help.

If you’re an estate trustee navigating the intricacies of estate management, we invite you to contact our experienced team for guidance and support. Whether you need assistance with record-keeping, estate accounting, or legal advice on fulfilling your duties, our knowledgeable lawyers are here to assist.

Of course, the best way to avoid estate administration challenges is to prepare a strong estate plan. We can help you avoid many of these issues by preparing your estate plan, including your powers of attorney so that your wishes are followed. 

Don’t let the complexities of estate administration overwhelm you. Contact Beeksma Law today for personalized assistance and ensure that you fulfill your duties with confidence and integrity.