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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.

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!

Small Spaces, Big Questions: Navigating Land Leases and Legalities for Tiny Homes in Ontario

an image of a tiny home in ontario

Disclaimer: This article on owning a tiny home 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.

As rents and housing prices become increasingly less affordable, more Ontarians are looking into tiny homes. For example, Ancaster’s first Tiny Homes Show was held in August 2022 and drew over 2,000 visitors and had over 20 speakers presenting on a variety of topics. Shows like Tiny House Nation have become increasingly popular and many wonder if a tiny home may be the solution. 

With their cozy interiors, clever design features, and the promise of financial freedom, tiny homes have become appealing. Many see tiny homes as a way to downsize, reduce their ecological footprint, and embrace a more intentional way of living.

However, what legal issues should you consider before selecting your floor plans? What are the challenges to legally owning and parking a tiny home? What should you consider if you want to build a tiny home in Ontario?

This article will consider these questions and more. Whether you are looking at a tiny home or a [something], it is important to have the right real estate lawyer by your side. Our team of legal experts will guide you through the intricacies of home ownership, helping you navigate the legal landscape and ensure compliance with local regulations.

What is a Tiny Home?

In Ontario, a tiny home refers to a small, self-contained dwelling that typically ranges from 100 to 500 square feet in size. These homes are designed to maximize functionality and efficiency within a limited space. Tiny homes in Ontario often prioritize sustainable living, minimalism, and affordability, making them an attractive alternative to traditional housing options.

While each municipality will have its own requirements, the tiny house construction bylaws mandate that a tiny home must measure between 17.5 ft2 (188 ft2) and 37 m2 (400 ft2 ). It must also meet these requirements: 

  • It must meet the Ontario Building Code requirements for health and safety; 
  • You must be able to live in it year-round
  • It must have an area for dining, living and sleeping and have a functional kitchen and bathroom. 
  • It must have sewage and water hookups. 

Financing your tiny home 

It’s worth noting that it’s incredibly difficult to secure financing for your tiny home. Lenders are reluctant to provide traditional mortgage loans for tiny homes due to their unique nature and less confidence in their resale value. However, there are still financing options available to help you fund your tiny home project. For example, if you are purchasing from a tiny home builder, they will typically have their own financing plans in place.

Municipal requirements for your tiny home in Ontario

The municipality where you intend to park your tiny home will have various bylaws and zoning requirements that may affect you. 

These include:

  • Minimum lot size
  • Minimum residential building size
  • Distance from lot lines and/or a public street
  • Height requirements
  • Parking needs
  • Access to municipal services (sewage, electricity etc.)
  • Architectural design
  • Access for emergency services. 

Land Lease to Park Your Tiny Homes

Finding suitable land to park your tiny home is a critical step in realizing your tiny living dreams. Whether you’re looking for a permanent location or a temporary spot, there are several factors to consider when searching for the ideal piece of land. 

However, like any agreement, you’ll want to consider carefully your land lease. Some areas to consider include: 

  1. Utilities

Can you connect to essential utilities, such as water, sewage and electricity? How will the costs be shared? Are there any restrictions to your use of the utilities? 

  1. Maintenance costs

Clarify the costs associated with the land lease. In addition to the monthly rent, are there any other fees, such as property taxes, maintenance fees, or utility expenses? Who is responsible for maintenance and repairs to the property, such as landscaping and snow removal? Discuss any potential increases in rent over time and whether there are provisions for negotiating lease terms in the future.

  1. Your use of the land

When leasing land to park your tiny home, it’s essential to discuss and understand your permitted use of the property. Are there any restrictions or limitations on the activities you can engage in on the land? Are there specific rules regarding modifications to the land or the number of occupants allowed? It’s important to clarify these details to ensure that your intended use aligns with the terms of the land lease.

  1. Lease term and termination 

Review the lease duration and termination conditions carefully. Is the lease for a fixed term or a month-to-month basis? Understand the process for terminating the lease and any penalties or notice periods involved. It’s also important to consider if there are any options for lease renewal or extension if you plan to park your tiny home on the land for an extended period.

Beeksma Law: Answering all of your big questions 

At Beeksma Law, our commitment to exceptional client service, attention to detail, and in-depth knowledge of Ontario real estate laws set us apart. Contact Beeksma Law today to schedule a consultation and take the first step towards making your home ownership dreams a reality.

Should you have trusts in your estate planning?

someone's will that includes information about testamentary trusts

Disclaimer: This article on testamentary trusts is intended for the purposes of providing information only. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

Estate planning is an important part of financial planning that involves making arrangements for the management and distribution of your assets after you pass away. 

A trust is a legal arrangement that allows you to transfer ownership of your assets to a trustee who manages and distributes them according to your wishes. Trusts can be a useful tool for estate planning, providing several benefits that can help you achieve your goals. (For more information about the types of trusts, check out this article)

In this article, we will outline three reasons why you might consider adding trusts to your estate plan.

Why Consider Testamentary Trusts: When You Want to Keep the Details of Your Estate Private

One of the main advantages of using a trust is to help you maintain privacy. Unlike a will, which becomes a public document when it is filed with the court, a trust can be kept private.

When you transfer ownership of your assets to a trust, those assets are no longer considered part of your estate and are, therefore, not subject to probate. This means that the details of your estate, including the nature and value of your assets and the identities of your beneficiaries, remain confidential.

Privacy can be especially important if you have complex or sensitive family dynamics. For example, you may not be gifting to your children equally. Whatever the reason, you may want to keep the details of your estate plan private to avoid conflicts or misunderstandings. A trust can help you achieve this goal by keeping your wishes confidential.

This is also true if you want the size of your estate to be kept private. By transferring ownership of your assets to a trust, you can avoid the public process of probate, allowing you to keep the size and details of your estate private.

Why Consider Testamentary Trusts: To Care for Children or Dependent Adults

Another reason why you might consider adding trusts to your estate plan is to provide for the care of your children or dependent adults. If you have minor children, for example, you may want to create a trust to provide for their financial needs in the event of your death. A trust can be set up to manage and distribute assets on behalf of your children, ensuring that they are cared for and that their inheritance is protected.

Many parents opt to create a graduated trust for their minor children. This means that the trust is distributed on a graduated schedule as the children reach certain ages. At that point, the trust can be dissolved and the remaining assets given to them outright.

Similarly, if you have a dependent adult in your life, such as a child with special needs or an elderly parent, you may want to create a trust to provide for their ongoing care. A trust can be set up to provide for their living expenses, medical care, and other needs, ensuring that they are well-cared for after you pass away.

Why Consider Testamentary Trusts: To Avoid Probate

Another reason why you might consider adding trusts to your estate plan is to avoid probate. Probate is the legal process that occurs after someone passes away, during which their assets are distributed according to their will or, if they die without a will, according to provincial intestacy laws. Probate can be a lengthy and costly process, as it involves court fees, legal fees, and other expenses.

By setting up a trust, you can transfer ownership of your assets to a trustee, who manages and distributes them according to your wishes. Because the assets are no longer considered part of your estate, they are not subject to probate. This can help your beneficiaries avoid the costs and delays associated with probate, allowing them to receive their inheritance more quickly and efficiently.

Additionally, estate tax is imposed on estates that exceed a certain value. By setting up a trust, you can reduce the size of your estate and help lower your estate taxes. (Of course, you’d want to talk to your accountant or financial planner about how to maximize  the tax savings you can achieve with a trust.)

These are just some of the reasons why you might consider adding trusts to your estate plan. With careful planning, you can use trusts to achieve your goals while ensuring that your beneficiaries are taken care of after you are gone.

Smart estate planning with Beeksma Law

Trusts can be a powerful tool for estate planning, providing several benefits that can help you achieve your goals. If you want to maintain privacy, provide for the care of children or dependent adults, or avoid probate, adding trusts to your estate plan may be a wise choice.

However, it’s important to seek professional advice when setting up a trust. There are many different types of trusts available, each with its own advantages and disadvantages. A qualified estate lawyer can help you navigate the complexities of estate planning and create a plan for your unique needs and circumstances.

At Beeksma Law, our team of experienced lawyers has the knowledge and expertise to create a comprehensive, personalized estate plan.  Contact us today to learn more about how we can help you with your estate planning needs.

A Beginner’s Guide to Trusts in Estate Planning

Disclaimer: This article on estate trusts is intended for the purposes of providing information only. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

We have talked about estate planning, estate planning for blended families, your powers of attorney and your will. Now it’s time to talk about trusts. In this beginner’s guide, we’ll explain what trusts are, how they work, and their use in estate planning.

What is a Trust?

Trusts are the unsung heroes of estate planning. They can be used to pass on assets, manage those assets, determine how they are distributed and much more.

A trust is a legal entity that allows someone (the settlor) to transfer assets to a trustee. The trustee holds the assets for the benefit of one or more beneficiaries. They have legal ownership of the assets, but the beneficiaries have an equitable interest in the assets. The trustee is responsible for managing the assets and distributing them according to the terms of the trust.

Depending on the tax considerations and other factors, the settlor and trustee may be the same person. Additionally, either or both could also potentially serve as beneficiaries in certain cases.

How are trusts created?

There are two broad categories of trusts. Trusts can be created during the settlor’s lifetime (an inter vivos or living trust) or when they die (a testamentary trust).

The terms of a living trust are typically set out in a document that the settlor signs. It appoints a trustee (or trustees) and directs how assets should be held, managed and distributed. An inter vivos trust is created once you determine the terms of the trust and the beneficiaries, and property has been transferred to the trustee to hold in accordance with the terms of the trust.

A testamentary trust, on the other hand, is created once someone has died. It can be created pursuant to a will. It can also be created pursuant to a beneficiary designation made under an insurance policy, a registered retirement savings plan or a registered retirement income fund. The important thing is that a testamentary trust comes into existence when the settlor dies.

The trustee’s role

The role of the trustee in an estate planning trust is a critical one. The trustee is responsible for carrying out your wishes and managing and distributing the assets according to the terms that you have outlined. As such, it’s important to choose a trustworthy and capable individual or organization as your trustee.

The trustee’s primary responsibility is to manage and invest any assets placed into the trust. This includes making sure that all taxes due on income generated from those investments are paid on time, as well as properly filing any necessary tax returns related to them. 

Depending on how they’re structured, the trustee may also have to make distributions at certain times or under certain conditions. The trustee has an obligation to exercise reasonable care when managing these assets and to act in the best interests of the beneficiaries.

Many of the same principles that we spoke about with regard to choosing an executor also apply here. When selecting a trustee, you should choose someone you trust and who is capable of carrying out their duties. Additionally, if you plan to have your spouse or another individual serve as a trustee, it’s important to also name one or more successor trustees, just in case.

Set up your estate planning with Beekmsa Law

At Beeksma Law, we believe that trusts do not get the attention they deserve. We are experienced in helping our clients create trusts that will protect their assets and carry out their wishes, both during life and after death.

We know how important it is to plan ahead. You have to do so to protect your hard-earned assets, provide for those you love, reduce taxes and make sure your wishes are followed. Whether you’re considering setting up a living trust, a testamentary trust or any estate planning tool, we can help. Contact us today to get started!