O'Sullivan Estate Lawyers LLP
CLOSE
Blog
View Related Areas+
SERVICES

Toronto Ontario Estate Law Blog

Death in a Digital Age

Your digital assets include everything from your smart phone and Amazon accounts to your social media accounts and web-based banking applications. The Uniform Access to Digital Assets by Fiduciaries Act (2016), as described below, defines a digital asset as "a record that is created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic or optical means or by any other similar means". A digital asset includes any electronic possession a person may have.

Getting Ready for the New Trust Reporting and Disclosure Rules

In a previous blog, "The Movement to Transparency and the Erosion of Privacy" we wrote about the global move to greater transparency by government and taxing authorities which they claim is necessary to combat money laundering and tax evasion.

As part of that agenda which the government asserts is necessary to ensure the effectiveness and integrity of the Canadian tax system, new income tax rules have been introduced which require trusts (with limited exceptions) to provide additional information. As well, certain trusts which may have had no reporting and disclosure obligations because they had no income will now be required to file a trust income tax and information return.

Change, It Is A-coming: Update on Estate Administration Tax

The current Ontario Government has implemented a couple of changes to the calculation of Estate Administration Tax ("EAT", often called probate fees) and the process for EAT refunds which are due to take effect January 1st. It has promised further changes to the deadlines for filing an Estate Information Return ("EIR") which is part of the EAT reporting regime.

These changes will affect all estates which go through the probate process, and raise the issue of whether advance planning might be beneficial for your estate to avoid or minimize EAT and its requirements.

Heading South For The Winter? Don't Forget Your Powers of Attorney

As colder weather approaches, Ontario snowbirds will start flocking to warmer climates. According to a 2018 study commissioned by The Canadian Trade Commissioner Service, close to 500,000 Canadian snowbirds spend their winters in Florida. Arizona and California are also popular destinations.

Many, if not most, will arrange health insurance in anticipation of travel, but consideration should also be given to incapacity planning. Who has the authority to manage a person's real estate assets, access financial accounts or pay bills upon incapacity? And likewise, who has authority to make health care and medical decisions on a person's behalf?

Bridging the Common Law-Civil Law Succession Divide

For those of us who live and work in a common law world, it is hard to imagine that we are by far the minority. Most of the world is governed by a civil law regime, customary law or religious law. Continental Europe, Russia, China, Japan, South America, Mexico and some of Africa are governed by civil law. The common law tradition is peculiarly English in origin, and most of its former colonies follow it, including in the U.S. (except Louisiana), Canada (except Quebec), Australia, New Zealand and India.

Beneficial Ownership Disclosure: Only the Latest Hit

People often wish to ensure confidentiality in doing their estate planning as an important goal. A trust is a common vehicle to do so, since court probate processes, which have been around for centuries, are public and once a will is probated it becomes a public document. The current government trend is towards greater disclosure of beneficial ownership, making achieving confidentiality in estate and trust matters much more difficult, if not impossible, in some cases.

Obtaining a court grant of probate (or certificate of appointment of estate trustee with a will in Ontario), which is often required for an executor to be able to administer a person's assets after his or her death, involves the filing of the deceased person's last will with the court making it available to the public. In addition, the total value of a person's assets must be disclosed in the application form, as well as the addresses, and if minor beneficiaries, dates of birth, of all beneficiaries must be provided to the court. While a probate application is not exactly a newspaper article, it is available to anyone who wants to see it and who is willing to bother to take a look at the court file. Now in Ontario a fulsome list of all estate assets subject to probate is required to be filed after the court certificate is issued, although this is not a publicly-available document.

Heads Up On Cross-Border Probate

With increased mobility, it's becoming more common to have assets in several jurisdictions, in which case, it is important to create a comprehensive estate plan that considers all of your assets and not just the assets located where you live. To deal with assets in more than one jurisdiction, there are a number of advantages in having multijurisdictional or separate situs wills (see our advisory on multijurisdictional and separate situs will planning).

Breaking the Silence: Dealing With Mental Health Issues in Estate Planning

One of the benefits that a trust and estate lawyer like myself enjoys is that we deal with people of every background, age and personality type and often in very profound ways. In short, we encounter all the diversity that humanity can offer. We see many family situations which gives one perspective and a broad awareness, and we hold the confidence (and confidences) of many in our role as a trusted adviser. This includes dealing with the challenging mental health issues of our clients and their family members from a legal perspective in their estate planning, and offering solutions to often perplexing and thorny issues.

One critical issue is first recognizing, then acknowledging, and finally constructively dealing with the reality that many of our family members suffer from an illness, not a physical one, but a mental illness.

How Old (or Not) Should Your Executor Be?

One issue which people planning their estates frequently struggle with is who to appoint as their executor. The choice for this important role deserves serious consideration. There are many factors to be taken into account in selecting the right person, one of which is his or her age.

Your executor's role is to administer your estate (which includes your assets and your liabilities) that you leave behind after you pass away. Your executor will only begin their role on your death. Their role does not begin during your lifetime - that is the function of your attorney for property.

Can You Disinherit Your Child?

The family landscape is changing with increases in blended families, matrimonial breakdown and cohabiting. This may mean shifting family dynamics and relationships, which will likely translate to more complex estate planning.

A parent may not want to pass his or her property to a child for a number of reasons. There are circumstances where it may be reasonable to exclude a child from inheriting, but a lack of proper planning can lead to costly disputes and strains on family relationships.

SCROLL TO THE TOP