Estate Litigation
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Do I need an estate litigation lawyer
Disclaimer: This article on choosing an estate litigation lawyer 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.
Estate law is more than preparing a will or settling an estate after the death of a loved one. There is also the litigation side of estate law. This article is designed to help you understand if you need to pursue estate litigation and if so, what that would look like.
At Beeksma Law, we practice in a variety of areas, including estate litigation. We understand that disputes involving estates can be unquestionably difficult and emotional. We provide guidance to help our clients navigate these complicated cases, so they are able to make the best decisions for their families.
Firstly, a note for those planning their estate.
Preventing Estate Litigation
To begin with, if you are planning your estate, it is important to take steps to prevent future disputes. This includes ensuring that your will is clear and properly drawn with the help of an estate lawyer, that all assets are properly allocated, and that executors and trustees know what is expected of them. With proper planning, you can be more confident that your executor will follow your wishes and avoid disputes.
What is estate litigation?
Simply put, estate litigation is when someone seeks legal action because of a dispute involving the management, control and distribution of property within an estate.
Let’s consider some examples of when someone may want to pursue estate litigation.
- Challenging or contesting a will
- Disputes related to how the estate executor carries out their duties
- Disputes related to how much a beneficiary receives from an estate or how much the estate is worth
- Issues related to how a power of attorney is being used
- Disputes between co-executors
- Disputes between co-attorneys of a power of attorney
- Disagreements between beneficiaries
- Disputes related to compensation for the estate trustee
- Guardianship and incompetency disputes
- Disputes that arise when there is no valid will
If you think you may need to pursue estate litigation, discuss this with an estate litigation lawyer immediately. In Ontario, estate litigation is time-sensitive. You must file a claim within two years after you knew or ought to have known that there was an issue. Generally, the legal standard is that the time limit begins when a “reasonable person” would know there was a problem.
Litigating an estate claim
Let’s very broadly outline how the process works if you need to litigate an estate claim. At any point, either side can file motions requesting that the judge make an order on a certain issue.
First, one party files a claim, along with any affidavits and evidence to support those claims. Then, the respondent responds to the claim, which includes their own affidavits and evidence. The applicant may or may not reply to the respondent.
Thereafter, each party cross-examine the other under oath about the materials, as well as any affidavits that they have filed.
Mediation is mandatory in Ontario. Mediation is where a neutral third party helps the parties come to an agreement. However, if this is unsuccessful, the case goes to trial, and both sides present their evidence and arguments to a judge. The judge will make a decision and issue an order that the parties must abide by.
Resolving an estate dispute without going to trial
It’s important to acknowledge that estate disputes are highly emotionally charged. Beyond the legal issues involved, grief sometimes makes people act irrationally or want to right wrongs that have nothing to do with the facts being disputed. We understand that and therefore work hard to help our clients move forward in a healthy manner while protecting their legal rights.
Litigation is simply never the best option. Litigation is time-consuming, difficult and expensive. It does not allow you to move forward in handling the estate or putting the dispute behind you. In many instances, mediation or negotiation resolves any estate disputes.
Understanding Estate Litigation With Beeksma Law
At Beeksma Law, we understand estate litigation and how to handle it in a respectful way. With extensive experience litigating estates, we are strategic advocates when it comes to protecting your legal rights.
Book a call with our team today for your complimentary consultation.
How to Avoid Estate Litigation
Disclaimer: This article on estate litigation 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.
The death of a loved one is hard enough, but for those embroiled in estate litigation, the process can be protracted, expensive, and emotionally draining.
It stands to reason that when considering what happens when you pass away, you will want to avoid the possibility of your loved ones going to court to settle any disputes. The good news is that there are things that you can do to lessen the likelihood of that happening.
This article will consider five things that you can do today to help your beneficiaries avoid estate litigation. Of course, there is always the risk of estate litigation, but creating a plan with the right group of professionals can go a long way towards estate peace.
The True Cost of Estate Litigation
Estate litigation can quickly become costly in terms of time and money.
However, the cost of estate litigation can be much more. In many cases, the death of a loved one and subsequent estate litigation has resulted in irreparable damage to the relationships between beneficiaries.
Avoiding Estate Litigation
What are some things you can do to help your estate avoid litigation? Let’s take a look at five key tips.
1. Have an estate plan
The first and most important thing you can do to help your beneficiaries avoid estate litigation is to have a well-drafted estate plan. Your estate plan should be tailored to your unique circumstances and take into account your goals for your estate. You should work with an experienced estate lawyer to create an estate plan that considers your unique circumstances.
Many think their net worth is too small to warrant an estate plan. Do not fall into this trap! Even a small estate can become the subject of a large argument – something that you certainly want to avoid.
Also, estate planning is not just about distributing your assets after you die. An estate plan can also help you manage your affairs if you become incapacitated. An estate plan can give peace of mind to both you and your beneficiaries.
2. Review your plan regularly
Your life will change. Maybe you will have children, buy a new home or cottage, or change jobs. As your life changes, so should your estate plan. Review your estate plan regularly with your estate lawyer to ensure that it still meets your goals and objectives.
3. Communicate with your beneficiaries
Your estate plan should be designed to meet your goals and objectives. However, it is also important to communicate your estate plan to your beneficiaries. Let them know what you have done and why you have made the decisions that you have. This will help to avoid estate litigation down the road.
4. Choose your executor(s) wisely
Your executor(s) will be responsible for carrying out your estate plan. Therefore, choose someone you trust implicitly and who can handle the responsibilities of being an executor.
If you choose to have co-executors, consider their relationship. If they currently do not get along, they will likely not work well together when facing the weighty responsibility of caring for your estate.
5. Work with a team of professionals
Estate planning is not something that you should do on your own. In fact, you should work with a team of professionals, including an estate lawyer, financial advisor, and accountant. This team of professionals can help you create a comprehensive estate plan that meets your goals and objectives.
An estate lawyer can help see potential difficulties that may arise and help you to avoid them. There may be provisions that you had never even considered but will protect your beneficiaries and estate. This is especially true if your estate lawyer has a practice that includes both the transactional and litigation aspects of estate law.
Working with a team of professionals will help to give you peace of mind knowing that your estate is in good
Proactive Estate Planning With Beeksma Law
Too often, estate litigation is the result of confusion and a lack of communication. By having a well-drafted estate plan, communicating with your beneficiaries, and choosing your executor wisely, you can help to avoid estate litigation.
However, estate litigation can still arise. If it does, working with a team of professionals can help to resolve the matter quickly and efficiently.
At Beeksma Law, we have a comprehensive estate practice that focuses on building strong estate plans and dealing with any estate litigation matters. This is important – our estate litigation background informs how we approach your estate plan. We have seen how disagreements can arise and use that practical knowledge to help you avoid estate litigation.
At Beeksma Law, we work closely with our clients to ensure that their estate plan meets their goals and objectives. We also regularly review estate plans to ensure that they are still up-to-date and meet our client’s needs.
The best gift you can give your family is a well-drafted estate plan. To start on your estate planning, reach out to our friendly and knowledgeable team today. We would be happy to help you achieve peace of mind.
Estate Trustee or Executor Fees in Ontario: How Much is Executor Compensation?
Disclaimer: This article on executor fees in Ontario and your estate plan 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 previously discussed that being an executor, or estate trustee, is a weighty responsibility. To carry out the terms of the will requires substantial time and energy. These responsibilities include collecting and distributing the estate assets (including large items like any real estate) and paying any debts.
To carry out these duties, the executor must keep accurate records of all transactions related to the estate. They must also act in the best interests of the estate and the beneficiaries of the estate. Depending on the value of the estate, this can be an onerous responsibility.
It is not surprising, then, that executors are often entitled to compensation. However, the question becomes, how much can an executor be paid for their role?
In this article, we will outline how executor fees are determined. We will also look at how that applies to multiple executors and others who perform the tasks of an executor.
If you are an executor, you do not need to handle this heavy responsibility alone. You should seek guidance from a lawyer to ensure you carry out your duties correctly and in the estate’s best interests.
How much compensation are executors entitled to in Ontario?
Executor fees for administering an estate are provided for in the Trustee Act. It says:
61 (1) A trustee, guardian or personal representative is entitled to such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about the estate, as may be allowed by a judge of the Superior Court of Justice. R.S.O. 1990, c. T.23, s. 61 (1); 2000, c. 26, Sched. A, s. 15 (2).
However, section 61 (5) states, “Nothing in this section applies where the allowance is fixed by the instrument creating the trust.”
What does this mean? The first step is to determine if the will provides for executor compensation. Is there a clause explicitly stating an amount or percentage of the estate the executor will receive? If you are entitled to compensation, that is usually the amount that the executor will receive.
Generally speaking, we do not recommend including a clause in the will that will set executor compensation at a specific fee. This is because it can be challenging to determine the size and complexity of the estate beforehand. An amount may have seemed reasonable when drafting the will, but it may not be appropriate when actually administering the estate.
What if there is no provision for payment in the will?
What if there is no amount of compensation stipulated in the will? The Ontario courts have determined five factors in determining what is “fair and reasonable” compensation. These are:
- The size of the estate;
- The care and responsibility involved;
- The time spent by the executor performing the duties;
- The skill and ability demonstrated and required by the executor; and
- The success resulted from the estate administration.
In Ontario, the executor of an estate is generally paid a percentage fee – meaning it would depend on the estate value. Executors generally receive roughly 5% of an average estate. The Court has applied guidelines where an allowance is usually set at 2.5 percent for capital and revenue receipts and 2.5 percent for capital and revenue disbursements.
However, it is vital to remember that this is just a guideline. The court will ultimately decide what is fair and reasonable based on the circumstances of the particular estate. A simple estate may warrant a lower fee than a more complex estate and vice versa.
One fee for one role, no matter how many executors
In some instances, a will appoints multiple people as executors. The amounts listed above apply to anyone who is an executor. For example, let’s say that there are two executors and that 2.5% of the capital receipts is $10,000. The estate would pay $10,000 for both executors, not $10,000 each.
This also applies to anyone who is not an executor but performs tasks that are part of the executor’s duties. If the executor hires someone to help with the estate, the executor will pay that person from their compensation.
Let’s use estate lawyers as an example. Estate lawyers are careful to carefully document their time. Are they performing work the executor usually does, such as notifying and reporting to beneficiaries? If so, they charge for their time as the executor.
If the lawyer were to charge the estate for those tasks, the estate would (in effect) be paying twice for the same performance. So those costs would be subtracted from the executor’s compensation.
However, on the other hand, a prudent executor is expected to seek out professional advice to ensure that the estate is being administered properly. In that instance, the lawyer would charge their time to the estate, and not deduct it from the executor’s compensation.
Navigating Estate Planning and Executor Fees in Ontario
The role of executor comes with many responsibilities. It can be a daunting task, made even more complicated by the fact that executors are not always familiar with their duties.
That is where we come in. At Beeksma Law, we have a team of experienced estate lawyers who can help you navigate the executor process from start to finish. We can help you understand your responsibilities and provide guidance on how to best manage the duties of an executor.
Our breadth of experience, from preparing estate plans to handling estate litigation, gives us the knowledge and skills to help you through every step. To learn more, please book a call with us today. We would be more than happy to discuss your specific needs.