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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!
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.
Disclaimer: This article on preparing estate documents 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.
We have talked before about the importance of having a will and powers of attorney in place. But what does it look like to have them done? We turned to one of our recent clients to tell us about her experience working with our firm.
Tell us about yourself
I am a 30-something-year-old married mother with one child. My husband and I have been married for quite a while, and up until recently, we did not have any estate planning documents.
I had met Shayna in a networking group, and when we decided it was time for a will, we turned to the incredible team at Beeksma Law.
What made me think about estate planning?
Like many people, we had not spent much time thinking about our own mortality. Yes, anything could happen, but it was not at the top of our minds. A couple of things convinced us that it was time to document our wishes.
First, we became parents, which changed everything for us. The question of what would happen to our son if something happened to both of us loomed over us. While we knew that our families would step in and care for him, what would that look like? Would he be receiving money at 18 that he is ill-equipped to handle? What if there were disagreements about who would be his guardian?
Also, the pandemic taught us that anything is possible. Anything can happen at any time. We had fooled ourselves into thinking that we didn’t need to do this process because we were relatively young and healthy. However, we came to realize that that didn’t matter.
While we considered a will kit, ultimately, we decided to work with Beeksma Law. Yes, it was more expensive, but I work with other types of templates in my line of work. They can be okay. However, they will usually not give you the same kind of quality that you get when you make an investment and work with an expert.
What did you appreciate about the experience?
I like to do my research, and when we approached Shayna and her team, I thought we had thought things through. I was wrong! During our first meeting, we outlined a number of areas that had never even crossed my mind. We appreciated how thorough she was and that the documents that we prepared fully considered what happens after we are gone.
We also appreciated being able to do our powers of attorney at the same time. During our conversations, we were helped to appreciate that a will only comes into effect when we die. What would happen if we were in a terrible accident? Who would handle our affairs?
We appreciated Shayna’s patience with us, answering every single question that we had under the sun. She was more than willing to make sure we understood our options and the implications of our choices.
What was it like working with a virtual law firm?
We loved it! We last worked with a lawyer when we purchased our house. At that time, we had to take time off work, travel to the lawyer’s office, and discuss and sign the documents.
We had wanted to work with Beeksma Law and were grateful that things were done virtually. Her offices are in Hamilton and Owen Sound. We are located east of Toronto. It would not have been practical if we couldn’t have attended virtual meetings and signings.
With a virtual law firm, we did not have to do any of that! We had one meeting where I was in the car between appointments, and my husband was able to step away while working. It was so much easier to schedule and attend our meetings with Beeksma Law. When it came time to sign, again, it was so simple. Everything was set up for us to sign virtually, saving us time and effort.
Simply put, we are pretty busy, and anything easy and straightforward is a big win for us.
How do you feel after preparing estate documents?
We feel so much better – this had been hanging over our heads. With strong documents in place, we feel so much more confident knowing our child will be well cared for.
We are so glad that we also worked with the team at Beeksma Law. They made everything so clear, simple and easy to understand. They ensured that nothing fell through the cracks and were incredibly organized.
We are extremely pleased with our decision to work with a firm specializing in estate law. We didn’t get the feeling that they dabbled in it or treated it as just another service they provided. Their expertise and passion were evident throughout the process, and there was no doubt that this was their area of expertise.
Preparing Estate Documents with Beeksma Law
At Beeksma Law, we love helping families feel confident about their futures by creating strong estate documents. Contact our team today to learn more about how we can help you.
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.
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!
Disclaimer: This article on challenging a will 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 disputes are becoming increasingly common, as family members wish to challenge the contents of their deceased relative’s will for a number of reasons.
If that’s the case, can you challenge a will? Who has the right to do so? What are the different grounds for contesting or challenging a will? These are the questions that we will answer in this article.
Who can challenge a will in Ontario?
In the province of Ontario, only certain individuals have the right to challenge a will. We call these individuals “interested parties.” Under Ontario’s Succession Law Reform Act (SLRA), interested parties are those who “appear to have a financial interest” in the estate. This could mean those who would be beneficiaries under the intestacy provisions of the Act if there were no will, or anyone else who can demonstrate that they were financially dependent on the deceased.
Typically, challenges are brought by children, grandchildren, spouses, siblings and other close relatives.
What are common grounds for challenging a will?
The court will not invalidate a will that treats you unfairly or if you do not receive what you felt entitled to inherit. Simply put, there is no legal requirement to be nice or to share an estate equally. It’s also important to note that the onus is on the person bringing forward a challenge to prove that the will is invalid. This means that the courts will assume that the will is fine and it is up to you to convince them otherwise.
However, you could successfully challenge a will under a few grounds. Let’s consider some of those.
Lack of Capacity
The law requires that someone making a will knows and understands the impact of what they are signing. Because of someone’s capacity, someone may question the validity of a will. Therefore, an interested party may challenge a will if the testator (the person making the will) did not have the mental capacity to understand:
- what they were signing;
- what it meant for their beneficiaries; and
- how another party was likely to interpret the will at the moment that the testator reviewed and signed the will.
This is particularly important – you must prove that the testator lacked capacity at the time of signing. There is a principle in law called a “lucid interval”. This means that while a person may struggle with cognitive function, they can still have lucid intervals where they can reason and make decisions. If that is the case, then a will made during this period could be valid.
Undue influence is another common ground for contesting wills. This is when an individual forces, coerces or manipulates the testator into making decisions that were not in their best interests. This could be by another family member, a caregiver, or even a lawyer or other professional involved in the drafting of the will.
The court can consider factors such as whether the will benefited anyone too highly in a disproportionate way. It can also consider whether the testator was influenced by someone they had an unequal relationship with (such as a caregiver).
We typically see this among elderly people who live alone. A “new friend”, caregiver or one of their adult children may take advantage of their relationship with that person to try to influence their decisions in order to benefit from their will or powers of attorney.
If you believe that any of these conditions have been present, then a court challenge might be the right course of action for your case.
We noted the example of actor Heath Ledger in an earlier article. He created a will, but did not update it after the birth of his daughter.
In some circumstances, an interested party can challenge a will if there is evidence that the testator did not update it to reflect changes in their circumstances. Those circumstances must be so noteworthy that the will no longer reflect the testator’s true wishes (i.e. to care for their children).
Fraud or Forgery
It is possible to challenge a will if there is evidence that someone forged or altered it in any way. It is also possible to challenge a will if someone fraudulently obtained the signature of the testator.
Contesting a Will in Ontario
Challenging a will in Ontario involves a few steps. First, you need to file a Notice of Objection. This is where you explain why you’re objecting to the will and state your interest in the estate (like being the child of the deceased and a beneficiary in a prior will). When you file this notice, the court will not move forward with any applications for the appointment of an estate trustee (or executor) until the objection is resolved.
What if an estate trustee has already been appointed? Then, you will have to file a motion demanding the return of the Certificate to the court.
Courts in Ontario can try to determine what the person who made the will (the testator) truly intended. Figuring out their intentions can be tough, especially if they’re no longer around to explain.
Challenging a will is a serious legal matter, and getting the process right is essential to protect your interests.
When You need to Contest a Will in Ontario, Contact Beeksma Law
At Beeksma Law, we are experienced in dealing with will disputes and can help you through the process. We understand that this is a difficult time for families. Our team of estate lawyers balances compassion with professionalism to be your guide and advisor through this process. If you would like to discuss your case further or any of your estate planning needs, please do not hesitate to contact us today. We are here to help!