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Estate Administration Archives

The True Role of the Trusted Advisor

Much has been written in recent years about the role of the "trusted advisor". A trusted advisor plays a key role in achieving client goals in their best interests and is worth their weight in gold. To do so, a trusted advisor needs to be able to provide clients with sound advice based on experience but also on the ethical dimensions of their decisions.

Forced Heirship vs Mandatory Succession Rights - It's All in Your Perspective

In Canada, succession rights are often discussed in the framework of testamentary freedom - see for example our previous blog regarding testamentary freedom which discusses disinheriting a beneficiary such as a child who might expect to inherit. But in many parts of the world, a person not only cannot disinherit certain family members, it would not be accepted by society at large in such places that a person should be able to do so.

Multijurisdictional Considerations in Appointing Guardians of Minor Children

There are important decisions that need to be made when parents with young families prepare their wills, including who will act as guardian of their minor children should both parents die. Not only do parents want to ensure they are providing for their children financially, they also want to be confident their children will be cared for and raised by appropriate individuals. What are the specific issues that arise if the proposed guardian does not live in the same jurisdiction? By way of background, in Ontario, the Children's Law Reform Act deals with testamentary custody and guardianship of minor children (individuals under 18 years of age) and parents have the authority to appoint a "guardian" for custody of their minor children under their individual wills. However, this appointment is only valid for 90 days from the date of death of the deceased parent. Please see our previous blog for further details on the appointment process.

A Happy Ending for Basket Clauses

Many people who live or have assets in Ontario are concerned about the amount of Estate Administration Tax (probate fees or "EAT") that will be payable on their death given the high rate of approximately 1.5% of the value of estate assets. One common estate planning technique for minimizing EAT is the use of multiple wills (for a discussion of techniques to minimize EAT please see our advisory "Planning to Minimize Estate Taxes"). While multiple wills have long been accepted by the Ontario courts and are specifically provided for in the Ontario Rules of Civil Procedure, the recent Ontario decision in Re Milne Estate held wills that contain "basket clauses", which are commonly used in multiple will planning, to be invalid. Fortunately, the decision was recently overturned on appeal, and now that the appeal period has expired for that decision, the issue appears to have been settled.

Unknown Unknowns: Pension Rights and Estate Planning

While it is less common these days for employment benefits to include a pension, many individuals still do have either a pension (not including the Canada Pension Plan, which is subject to its own rules and which is not the subject of this blog) or a locked-in retirement account (LIRA) which was created from former pension funds. While these funds, particularly LIRAs, tend to be thought of as if they are RRSPs or RRIFs, it is important to remember that the rights associated with them, including the right to designate a beneficiary, are not always the same.

Death and Taxes: The Buck Does Not Stop Here

Everyone knows that death and taxes are two of life's certainties, but some of us may not appreciate that our tax liabilities don't disappear on death and that our legal representatives become responsible for sorting out our unfinished tax business.

Safekeeping of Estate Planning Documents: Digitally Challenged?

As estate practitioners, we continually remind our clients to update their estate planning documents and ensure they reflect their current intentions. A further key consideration is how estate planning documents should be properly recorded, stored and safeguarded.In order to embrace the digital era, the legal community has made significant strides in digitizing legal documents, particularly in the areas of corporate law (documents are often signed digitally including in major transactions) and document-management. We are frequently asked by our clients whether wills can be digitally signed and stored. Although several jurisdictions, including Nevada and Florida, have introduced or proposed legislation for digital wills (please see our blog on this topic), no legislation has been introduced in Canada. What are the procedures for properly recoding and safely storing original documents?

Critical Dates in Estate Administration: What You Need to Know

When a loved one passes away, whether it is expected or not, their death begins not only the process of grieving by those left behind, but also the process of dealing with what the deceased family member has left behind. There is often uncertainty and apprehension felt by those in charge of the estate administration. One of the most frequent questions we are asked is "what deadlines do I need to know about?".

Appointing an Executor Under a Will: A Modern-Day Dilemma

Earlier this week, O'Sullivan Estate Lawyers participated as one of the gold sponsors of the STEP Canada (the Canadian branch of the Society of Trust and Estate Practitioners) 20th National Conference in Toronto, which annually brings together trust and estate specialists from across Canada and other countries to share knowledge and discuss developments. Among the attendees this year were representatives of law and accounting firms, professional trustees, insurance and investment companies, and even experts for finding missing heirs.

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