One of the interesting changes in our modern age when it comes to succession on death is that for many people, most of what they pass to their family and others will not be through their will, but instead by a "will substitute" such as life insurance. Many persons have term policies with a death benefit far greater than the assets accumulated during their life.
The Ministry of Finance recently introduced a 15% tax on the purchase or acquisition of a residential property in the Greater Golden Horseshoe by individuals who are not citizens or permanent residents of Canada or by foreign corporations or taxable trustees. The new Non-Resident Speculation Tax ("NRST") is in addition to the Ontario and Toronto land transfer taxes. Although the NRST is subject to the approval of the legislature, it is currently in effect and applies to any agreements of purchase and sale entered into after April 20, 2017.
In our August 2015 post entitled "Keeping Your Estate Plan Healthy with Periodic Check-Ups" we raised the potentially problematic reality that your estate plan may only be truly up-to-date the day you sign your estate planning documents. We put estate plans in place to ensure that our wishes, intentions and goals are achieved in the event of incapacity or death. For most of us though, our day-to-day lives are perpetually changing--whether it be our relationships, residency, health, assets or values.
Blended families have become common, raising additional complexity for estate planning primarily due to differences in family dynamics and objectives. A failure to take these differences into account often leads to acrimony and disputes, which may irreparably damage family relations and thwart the estate plan. To minimize disputes and to ensure objectives are fulfilled, it is important to build safeguards into the estate plan.
Updating your estate plan on separation and divorce in a timely manner is critical in order to avoid unintended results, possible later disputes, and even litigation. The following highlights some of the most common concerns, as well as precautions to take.
The case of Kilitzoglou v. Cure highlights the confusion and difficulty sometimes caused when an issuer of a life insurance policy or retirement plan requires a beneficiary designation to conform to its standard form and rules. In that case, the deceased filed a change of beneficiary designation form with Trans-America which was rejected on the basis that it did not precisely set out each beneficiary's entitlement on a percentage basis.
You may know that having a beneficiary designation for your life insurance policies or registered retirement plans (RSPs) is a good idea, including in order to avoid Ontario estate administration tax (previously probate fees) on the value of assets which would otherwise pass through your estate (see our Client Advisory "Planning to Minimize Estate Taxes Under The Estate Administration Tax Act, 1998 (Ontario)"), and protect against creditor claims. However, using the simple forms provided by the insurer or financial institution will not be sufficient or optimal in many situations. In contrast, a tailored designation which can be included in your will can allow for the same level of intricacy as the provisions in your will, including trust provisions for minor children and other beneficiaries.