Estate Planning Checklist: Decisions to Make Before Drafting Your Estate Documents

an older couple reviewing their estate planning checklist.

Disclaimer: This article is intended for the purpose of providing an estate planning checklist. 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. It does not purport to be exhaustive. 

Estate planning is a crucial process. It allows you to make important decisions about the future of your assets, your loved ones, and even your own well-being.

Whether you have a complex or simple estate, putting an estate plan in place is a gift to your loved ones. Planning ahead for the future, seeking professional advice and creating estate planning documents has many benefits. It will make your wishes clear, can help you lower probate fees and minimize your estate trustee’s liability. 

In this blog, we will provide an estate planning checklist with many areas to consider. Let’s delve into some of the essential decisions you must make during your estate planning process.

The importance of a proper estate plan

A well-thought-out estate plan is incredibly important. Not only does it safeguard your assets, but it also ensures that your loved ones are taken care of, and your final wishes are honored.

It will help your estate trustee make decisions and move more quickly through the probate process. Without a comprehensive estate plan, the distribution of your assets can become a contentious and complex process, potentially leading to disputes among family members.

However, it’s not just about your last will and testament. You need important documents, such as your powers of attorney, to allow someone to make critical decisions about who will manage your financial and healthcare affairs if you become incapacitated. 

Who will be your executor or estate trustee? 

The executor of your estate plays a pivotal role in ensuring your wishes are carried out according to your will. Typically, spouses are named as the primary executors, but it’s important to consider alternates, such as close friends or family members, in case your spouse cannot fulfill this role. You can even select two or more individuals to act as co-executors but remember that they must work jointly to manage your estate efficiently.

Your executor administers your estate and carries out many responsibilities. Learn more about choosing the right person for your estate administration here. 

What assets do you currently own (including life insurance policies, digital assets, etc.)? 

You will want to make an up-to-date list of your significant assets, including any life insurance policies, real property and other items. With regards to property or bank accounts, are there any of them owned jointly with your spouse? 

Do you own any foreign assets? If so, note the location if outside your province. Specify the country in which these assets are located. This information is crucial for the smooth administration of your estate, as different countries have varying laws and regulations regarding foreign assets.

Who did you choose as the beneficiary when you completed the beneficiary designation for your life insurance? It’s important to ensure that your selection aligns with your estate documents.

Who are your beneficiaries? 

Making a list of beneficiaries is a fundamental aspect of estate planning. Typically, spouses designate each other as primary beneficiaries, followed by their children in equal shares. Additionally, you should plan for contingencies, such as if one of your children predeceases you, ensuring their share goes to their children (your grandchildren). 

Who will be your ultimate distribution beneficiaries?

Consider who should inherit your assets if none of your named beneficiaries are alive at your death and they leave no children behind. Common choices for ultimate distribution beneficiaries include siblings, parents, cousins, close friends, or charities. Your estate planning should reflect your preferences for these scenarios.

Would you like to create any beneficiary trusts?

If your beneficiaries include minors, you have the option of setting up a trust to manage their inheritance. You can choose between a “standard” trust, where the minor receives their full inheritance at a specified age (e.g., 18, 21, 25), or a graduated trust, which disburses the inheritance in stages. Clearly define the ages, amounts, and number of disbursements preferred to meet your objectives.

Would you like to create any other trusts? 

Trusts can serve various purposes, from minimizing estate taxes to providing for specific needs of your beneficiaries or even supporting charitable causes. Your decision to establish additional trusts should be guided by your financial goals and family dynamics.

Who will be the guardians of any minor children? 

If you have minor children, it’s crucial to appoint guardians who will take care of them if you and your spouse are unable to do so. Typically, spouses name each other as primary guardians, followed by close family members or friends as alternates. You can also designate a second alternate to ensure the well-being of your children. 

With regards to your guardians, it is advisable to make sure they know that you have chosen them for this serious responsibility.  

Are there any specific gifts or cash legacies you would like to bequeath? 

If you have particular items or cash amounts you wish to leave to specific individuals or charities, be sure to document these in your estate plan. These specific gifts ensure that your cherished possessions and causes you care about are remembered and honored.

It may be wise to include specific gifts as a schedule to your will. For example, suppose you want a specific piece of jewelry to go to a certain grandchild. However, you then lose that piece of jewelry before you pass away. A separate schedule makes it easier to update specific gifts without having to amend the entire will. 

Who will be your power of attorney for property? 

Your Attorney for Property will manage your financial affairs in the event of incapacity. Typically, spouses name each other as primary appointees, followed by alternates. 

When it comes to choosing co-attorneys, you have the option to decide whether they should act jointly or jointly and separately.

Jointly: If you choose to have your co-attorneys act jointly, they must make decisions together and reach a consensus. This approach ensures that all major financial decisions require the agreement of both co-attorneys, which can provide an added layer of security and oversight.

Jointly and separately: If you opt for joint and separate authority, your co-attorneys can make decisions together, but they can also act independently when necessary. This approach balances joint decision-making and the flexibility for each co-attorney to manage specific financial aspects without needing the other’s approval for every transaction.

You also need to specify when their power of attorney will come into effect. You can decide whether it should take effect immediately upon signing or only upon your incapacity. 

If you grant them immediate authority, they can begin managing your financial affairs as soon as the document is executed. This means avoiding any delay involved with determining that you are incapable of managing your affairs. However, it also means that they can make decisions without your direct involvement, which may not be suitable for everyone.

Who will be your power of attorney for personal care? 

Your Attorney for Personal Care is responsible for making medical and healthcare decisions on your behalf if you become unable to do so. Typically, spouses choose each other as primary appointees, followed by alternates. Again, if you appoint co-attorneys, decide whether they should work jointly or jointly and separately.

In addition to these decisions, there are other factors to consider.

You should clearly state your organ donor status within this document to ensure your preferences regarding organ donation are respected.

Furthermore, you may want to consider whether your appointee should receive compensation for their role, as serving as an Attorney for Personal Care can be a demanding responsibility.

Lastly, suppose you hold specific religious or cultural beliefs that are important to you with respect to medical treatment and end-of-life care. In that case, it is essential to include them in your document. This will help guarantee that your healthcare choices align with your personal values, providing assurance and preserving the integrity of your healthcare decisions.

What are your burial wishes?

Finally, consider your burial wishes. This may include decisions about cremation, burial, or even specific details such as the choice of cemetery. If you have pre-planned your funeral, provide these details to ensure your wishes are carried out.

Regularly update your estate plan.

Life is constantly evolving, and so should your estate plan. Major life events such as marriage, divorce, the birth of children or grandchildren, changes in financial situations, and even changes in tax laws can all have a significant impact on your estate planning needs. By revisiting and updating your estate plan periodically, you can make necessary adjustments, address any new concerns, and guarantee that your loved ones are well-protected and that your assets are distributed as you intend.

Consulting with an experienced estate planning attorney, as well as receiving accounting or similar professional advice can help you navigate these changes and ensure that your estate plan remains a reflection of your current wishes and goals. 

Get started on your estate plan today!

Estate planning is a complex process that involves making a myriad of decisions. You must carefully select of an executor, beneficiaries, guardians, and more.

Our estate planning checklist is just the beginning of creating your estate plan . When it comes to the complex legal aspects of planning your estate, Beeksma Law is your trusted and experienced partner. We primarily focus on estate law and with our estate litigation experience, we have the unique ability to craft legal documents that not only reflect your intentions but also minimize potential liabilities.

By reaching out to Beeksma Law, you can be confident that we will handle your estate planning needs with professionalism and expertise, protecting your assets and legacy for future generations.

Navigating Construction Projects in Ontario: Bonds and Government Properties

a large government construction project, the type that would require performance bonds.

Disclaimer: This article is intended for the purpose of providing information on performance bonds and construction liens in Ontario 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. 

If you are a contractor or subcontractor, you are probably all too familiar with the importance of construction liens. After all, construction liens play a crucial role in securing payment for your services and materials in the construction industry. These legal tools provide you with a way to protect your interests and ensure that you receive the compensation you are owed for your work.

However, do you always have that option? Can you lien government property? If not, what options are available to you? 

In this article, we will provide the answers to those questions. We will also note how this will affect you if you are a sub-contractor on a government or public contract. 

Construction Liens: The Usual Process

In Ontario, the process for construction liens is governed by the Construction Lien Act. A construction lien is a legal claim that attaches to the premises. The lien claimant, the person entitled to a lien (such as a contractor or subcontractor), must take specific actions to preserve and enforce the lien.  

The process usually starts when someone has the right to put a lien on a construction project. This happens when they take legal action to make sure they get paid for their work. Often, they start this process by saying that they’ve done most of the work, which is called a “declaration of substantial performance.” This step is really important in making the lien stronger. After that, they need to register a certificate of action, which makes their claim official and keeps it valid throughout the whole construction project.

Can You Lien a Government Property?

Generally speaking, no. You cannot register a lien on title against a property owned by the Crown.  The Crown, or government, typically has immunity from certain legal actions, including the ability to place a lien on their property.

Does that mean you have no legal options to ensure you are paid? Of course not. That is where bonds come into play. 

Bonds Required under the Construction Act

Section 85.1 of the Construction Act and section 12 of the General Regulation state a contractor must provide both a performance bond and a labor and materials bond for any “public contracts” with a contract value equal to or exceeding $500,000. These bonds must be in the specified formats required under they Act. They must offer coverage that is at least 50% of the contract price.

The Act defines a “public contract” refers to an agreement where the contracting party is either:

  • the Crown,
  • a municipality,
  • or a broader public sector organization.

It’s important to note that this provision does not apply to contracts involving architects or engineers as contractors. Consequently, this requirement is designed to encompass all government-awarded construction contracts with a contract value of $500,000 or more. 

A Note for Ontario Subcontractors

As subcontractors and suppliers, it is crucial to understand the role of bonds, especially when dealing with government properties. While construction liens may not be available for government-owned properties, performance bonds step in to provide payment protection.

When working on a government contract, it is essential to ask the contractor for proof of a performance bond. This bond provides payment protection for subcontractors and suppliers in case they encounter issues with non-payment by the contractor. With a performance bond in place, subcontractors and suppliers have recourse to file a claim against the bond to recover payment if they are not paid by the contractor.

By requesting proof of a performance bond before starting work on a government contract, subcontractors and suppliers ensure that they have a safety net in case of non-payment. This bond serves as an additional layer of protection and offers peace of mind to those involved in construction projects on government properties. 

The Importance of a Strong Contract

A strong contract not only clarifies project scope, schedules, and costs but also addresses crucial issues like liability, risk allocation, and dispute resolution mechanisms. Moreover, it provides a clear pathway for recourse if any party fails to fulfill their obligations. In essence, a well-crafted contract serves as a project’s guiding document, offering security and peace of mind to all parties involved.

Engaging a lawyer to review and, if necessary, revise contracts ensures the agreement is effectiven and fair. Legal professionals can make sure the contract complies with relevant laws and regulations. This is especially important in industries with complex regulatory environments.

Lawyers can help identify and mitigate risks, draft precise language to protect their client’s interests. We can also suggest dispute resolution mechanisms that are fair and efficient. In essence, legal review adds an extra layer of security, reducing the chances of costly disputes and legal entanglements while ensuring that the contract accurately reflects the intentions and expectations of all parties involved.

Building a stronger business with Beeksma Law

Looking for exceptional legal support for your business needs? Look no further than Beeksma Law. We specialize in both the transactional and litigation aspects of business law . As entrepreneurs ourselves, we truly comprehend the significance of your business operations. Whether you require us to review your contracts, assist with non-payment issues, or something else, we have the expertise and dedication to protect your business.

Contact Beeksma Law today to ensure your business’s legal needs are met with precision and care. 

Considerations for Buying Rural Properties

Disclaimer: This article is intended for the purpose of providing information on rural property in Ontario 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. Updated October 2023.

Driven by rising house prices and the COVID-19 pandemic, more than 64,000 people left Toronto between mid-2020 and mid-2021. Many families are reevaluating their situations and are seeking greener pastures, quite literally.

Rural properties are becoming more popular as people are looking for more space and a slower pace of life. If you’re considering making a move to the country, there are a few things you should keep in mind.

There are considerations that you will want to consider for your family. For example, if you work from home, consider the internet quality and reliability in the area. If you have children, consider the schools and extra-curricular activities that are available. Don’t forget to account for the extra-long commute when you do need to go to the office.

However, from a legal standpoint, there are also differences in purchasing a rural property compared to an urban or suburban one. In this article, we will outline those unique requirements.

That includes:

Of course, we encourage you to book a call with our team as soon as you have made an offer on your next dream home. We’re here to help and would be more than happy to answer any questions you may have.

Accessing Your Dream Home

You may have found your dream home, but can you access it?

Road access can be a critical concern, especially for waterfront or vacation properties. Sometimes, the access road or driveway crosses private land, and there may be no guaranteed legal right of use. Responsibilities for road maintenance are often unclear, creating the risk of access restrictions or unexpected repair expenses.

Your lawyer’s title search may involve tracing legal access through private properties to connect to a municipal road. Title insurance can help resolve access problems, but it’s not always available.

In Ontario, many bodies of water are encircled by a shoreline road allowance owned by the Crown. Typically, municipalities sell this road allowance to property owners. If this applies to the property you’re buying, it might encompass multiple parcels and PINs (Property Identification Numbers).

When reviewing a legal description that references a past instrument number, your lawyer will have to verify that it covers all the land you expect to acquire.

For properties where the shoreline road allowance hasn’t been purchased and conveyed, inquire about the proximity of any improvements to the water’s edge. Suspicion of encroachments onto the shoreline road allowance should prompt consideration of obtaining a survey.

Septic Systems Inspection

When you are buying a rural home that has a septic system, you will want to do a septic system inspection. In fact, your lender will usually required that it be done before approving your mortgage.

Many homeowners that are selling will provide it automatically, but if not, you will need to get this done.

The septic systems inspection will check items such as the size of the septic tank, the location of the leach field, and the condition of both. The inspector will also look for any signs of damage or leaks. This is important because if there are any problems with the septic system, it can be very expensive to fix.

Water Test

Another inspection that you will need to have done is a water inspection. If your home has a well, then you want to make sure that the water that you are getting is safe. Poor water quality can cause health problems, taste unpleasant or be costly to treat.

Therefore, if the seller does not provide this information to you, you will need to have a water inspection conducted to ensure that your water is not contaminated. Your realtor or our team can direct you how to have those tests completed.

Shared Wells & Shared Well Agreements

Rural real estate transactions can present unique challenges, and one such complexity involves shared wells. In rural areas, properties might rely on wells, some of which are shared among neighbors.

If you’re considering purchasing a property with a shared well, there are several crucial considerations.

Shared Well Agreement: Verify if there is a shared well agreement in place. The absence of such an agreement can lead to disputes and confusion regarding maintenance, repairs, and water usage responsibilities. Ensure there’s an agreement before finalizing your purchase.

Existing Shared Well Agreement: If a shared well agreement exists, obtain a copy and review it with legal counsel to understand your rights and obligations. The agreement should outline maintenance, cost-sharing, and water usage limitations.

Well and Water Quality: Assess the condition of the shared well and the water quality. If issues arise, negotiate repairs or upgrades with other parties sharing the well.

Risks and Limitations: Understand the potential risks of shared wells, such as contamination or overuse. Shared well agreements can restrict property modifications, so consider how they impact your future plans, such as pool installation or well expansion.

Title Restrictions: Unlike shared driveways, shared well agreements are typically not registered on property titles. However, it’s advisable to have such agreements prepared and passed from owner to owner.

Learn more about shared wells here.

Planning Act Contraventions

Because rural properties are generally not part of a plan of subdivision, our team will check for any Planning Act contraventions as part of our title search process.

Surveys

If you are purchasing a property that is either zoned agricultural or mixed-use, you will likely need to have a survey done before purchasing the property.

Otherwise, you may opt to have a survey done to be sure of the property boundaries. This is especially true if your property is large and open, with no fencing to mark those boundary lines.

This is something that you can discuss with your realtor or our team. Surveys can take months to complete, so unless it is zoned, as noted above, you can have that completed following your closing date.

Make a Move: Buying a Rural Property in Ontario With Beeksma Law

As you move out to the country, be sure to take the proper legal steps in your move. With offices in Hamilton and Owen Sound, Beeskma Law is poised to be able to handle your transition from urban to rural living. Our team is experienced in rural property transactions and would be more than happy to help you with any questions that you may have. Contact us today!

Why Have a Cohabitation Agreement in Ontario?

a happy couple hugging because they got a cohabitation agreement in ontario

Disclaimer: This article on drafting a cohabitation agreement 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.

Entering into a committed relationship with your partner is a significant milestone in your life. There is a growing trend in Canada towards common-law relationships. For some, the intention is to never marry. For others, they just haven’t tied the knot yet. 

Regardless, you must consider the legal implications. This is where a cohabitation agreement comes into play.

This article will explore why having a cohabitation agreement in Ontario is a wise choice. We’ll discuss the purpose of these agreements and address common questions.

What Is the Purpose of a Cohabitation Agreement?

A cohabitation agreement is a binding contract. You may see it called a common-law or domestic partnership agreement. It is designed to provide clarity and protection for unmarried couples living together. Its primary purpose is to establish the rights and obligations of each partner within the relationship.

The property division sections in the Family Law Act only apply to married couples. This means that without an agreement, your property rights remain distinct from your partner’s. This is true even if you’ve been in the relationship for a long time.

Cohabitation agreements serve several essential functions.

Property Division: 

The agreement will typically outline how you will divide your property if you separate. This ensures that each partner’s assets are protected.

Debt Protection: 

Cohabitation agreements can safeguard each partner from the other’s debts. This means that if your partner accumulates debt during the relationship, creditors cannot access your assets.

Income and Asset Protection: 

One of you may expect more income or a financial windfall, such as an inheritance. The agreement can specify you will manage these scenarios. 

Clarifying Financial Expectations: 

The agreement helps establish clear expectations when it comes to financial matters. This will reduce any disputes if you separate.

Children’s Welfare: 

Cohabitation agreements cannot determine child custody or child support arrangements. However, they can address financial obligations related to your children from a previous relationship.

Inheritance: 

The agreement can include provisions regarding the inheritance of property if one partner dies. 

How Long Does a Cohabitation Agreement Last?

A common question that arises when discussing cohabitation agreements is their duration. Cohabitation agreements can be flexible and last as long you want. You can sign an agreement at any time during the relationship. You can sign one at the outset or years into your relationship.

However, these agreements can evolve if you get married. The cohabitation agreement may automatically transition into a marriage contract. 

The marriage contract will address the changed status and rights and obligations associated with marriage. It’s crucial to review and, if necessary, update the agreement to align with your new status.

Do I Need a Cohabitation Agreement in Ontario?

The decision to have an agreement is a personal one. However, there are situations when having an agreement becomes especially important:

Protecting Separate Property: 

Do you have significant assets or debts that you want to protect? A cohabitation agreement is crucial to ensure that they remain separate.

Financial Independence: 

Do you prefer financial independence? Do you want to maintain ownership of your assets? An agreement can clarify these expectations.

Avoiding Court Disputes: 

Having an agreement in place helps prevent disputes by spelling everything out and getting both of you on the same page. 

Protection for Children: 

Do either of you have children from a previous relationship? An agreement can outline financial support arrangements to ensure the children’s welfare.

Protecting your common-law relationship with Beeksma Law

In Ontario, the legal landscape for unmarried couples differs greatly from that of married couples. A cohabitation agreement is a valuable tool for protecting your rights and assets. To discuss your cohabitation agreement, get in touch with the team at Beeksma Law today!

What You Need to Know About Breaking Your Commercial Lease

breaking your commercial lease agreement in Ontario

Disclaimer: This article on breaking your commercial lease 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.

Perhaps you are a business owner who has outgrown your current space. Or you are a landlord who has reached your limit with a difficult tenant. Regardless, one thing is clear: you need to break that commercial lease. 

This article will explore the process and what you should consider before breaking your lease. We will discuss this question from the perspective of both tenants and landlords. 

(Negotiating your commercial lease? Feel free to read this article on what you need to know.)

The Significance of Commercial Leases

Commercial leases are legally binding agreements. They outline the terms and conditions governing the use of commercial properties. These leases play a crucial role, defining the rights and obligations of the tenant and the landlord.

Lease agreements can be complex and specific to each situation. As such, the process of breaking a commercial lease may vary. The terms of your lease will dictate what you can do next. Below, we’ll explore some common strategies for both tenants and landlords:

Breaking a Commercial Lease as a Tenant

Breaking a commercial lease in Ontario as a tenant requires careful thought. You must adhere to the terms of your lease and to legal procedures. Here are several strategies tenants can consider:

Give Your Landlord Notice

When ending a lease that has a specific term, you can give your landlord notice. For monthly leases, one month’s written notice is typically required. 

Landlord Breach of Lease

If your landlord does not follow the terms of the lease, you may have grounds for ending it. This can occur if the landlord impacts your business by altering access to the property. In such cases, you can consider the lease terminated and sue the landlord for damages.

Sublease Agreement 

Under certain situations and with landlord consent, you can sublease all or part of the rented property. This allows you to pass on the use of the property to another subtenant. Keep in mind that you remain financially responsible for the original lease.

Assignment Agreement

Similar to subleasing, you can assign your lease to a new tenant. This means the new tenant takes over your tenancy and the terms of the lease. The landlord must agree to this arrangement.

Breaking a Commercial Lease as a Landlord

Landlords can also face situations where they may think they need to break a commercial lease. However, they do have other options. 

Distraint: 

Distraint is seizing someone’s assets to be paid for money owed. Landlords may be able to use this remedy to deal with outstanding rent. In that instance, they would enter the premises and seize goods with a value up to the amount of outstanding rent.

Damages: 

Landlords can sue tenants for monetary damages resulting from breaches of the lease terms. For example, if a tenant causes significant damage to the property beyond normal wear and tear, the landlord can seek compensation for repair costs

Injunction: 

Seeking an injunction can stop a tenant from engaging in activities prohibited by the lease. For example, if a lease explicitly forbids using the rented space for specific activities, such as operating a noisy nightclub in a residential area, and the tenant violates these terms, the landlord can seek an injunction.

Specific Performance: 

Landlords can seek an order of specific performance to force a tenant to fulfill lease obligations.

However, sometimes a landlord’s only option is to terminate the lease. Here are some common remedies that are available. 

Forfeiture: 

Landlords can terminate the lease by providing written notice to the tenant and preventing them from entering the premises.

Writ of Possession: 

In some cases, physically excluding the tenant is impractical. In those cases, landlords can obtain a writ of possession to take possession of the property on their behalf.

Seek Professional Assistance to Break Your Commercial Lease

Whether you’re a tenant or a landlord, breaking a commercial lease in Ontario is no simple matter. It’s essential to consult an experienced business lawyer to ensure as smooth a process as possible.

If you find yourself in such a situation, don’t hesitate to reach out to legal experts like Beeksma Law. Our team of experienced lawyers has the expertise to guide you through the process and protect your interests. Book your complimentary consultation today