The Elements Of A Good Estate Plan (Part 3)

Estate Planning

Proper estate planning should, at a minimum include: a Will, a Power of Attorney for Property, and a Power of Attorney for Personal Care. But good estate planning doesn’t end there.

Designating Beneficiaries in Insurance, Pensions and the like

I cannot over emphasize how important it is to ensure that you keep your beneficiary designations in such things as insurance, pensions, RRSPs, TFSA and any other similar plans complimentary to your overall estate planning. It is crucial to pay attention to and keep up to date these designations because in the absence of compelling evidence to the contrary the Courts will uphold these designations. That is to say they may survive separation, divorce, and even separation agreements renouncing rights to take as designated, if the designation has not itself been amended by the time of the planholder's death.

Make Your Estate The Beneficiary

Of course, sometimes it’s not possible to designate the preferred beneficiary. In that case, make your estate the beneficiary. Your estate may pay more in taxes but your Will can insure the monies go to the right person.

Need Help with your Estate Planning?

If you need help with your estate planning contact myself or any Wills and Estates Lawyer. My goal is to deliver personalized high quality Wills and Estate Planning services in a direct, approachable and cost effective way. I implement the efficient use of technology to reduce or eliminate bottom line costs to my clients.

For more information visit my website at www.hunt-law.ca

Shekh ma shieraki anni -- My Sun and Stars

Valentine's Day Cookies

 If there was such a thing, here are Daenerys Targaryen’s Valentine’s Day cookies for Khal Drogo. Sun and stars for her sun and stars. 

(Yes, I am counting the days until Season 3 of The Game of Thrones begins, March 31.   Game of Thrones -- Chaos   )

Finding the perfect cookie

I decided to make some cookies for Valentine’s day (the Christmas baking has now all been consumed). I wanted something with orange flavour – just the mood I was in. I wanted it to have butter, orange peel or zest and orange juice. So I scoured the internet and I found this recipe. I was a little skeptical because I’ve been trying different sugar cookie recipes for years and never liked any.

When my kids were in middle school we instituted a Christmas baking day. Turns out there is always a PD day close to Christmas (usually sometime in mid to late November) so that was the day. Their friends could come over and kitchen mayhem ensued. The kids always enjoyed decorating cookies but I never could find a good recipe – either the dough was too hard to work with or it just didn’t taste good.

The Recipe

 Diana's Desserts Holiday Sugar Cookies
 
I like this recipe. It makes a nice soft puffy cookie. (My daughter thinks they are like muffins.) I don’t really think it’s a sugar cookie since they are not very sweet – the sugar to flour ratio should have been my first clue! Of course, icing will remedy that. I put in the zest of a whole orange; I think you could use more. Instead of vanilla I squeezed the juice out of half of the orange which was more than a teaspoon but it wasn’t a problem. Be very careful baking, you just want the very bottom edge to be brown.

For the icing I used butter and cream cheese and the juice from the other half of the orange. It is okay. I am still looking for the perfect icing for decorating cookies. I dipped some in melted chocolate.  This is my daughter's area of expertise and she had to go back to school so I had to do it myself.  I am happy with the results.

This made a ton of cookies so I have packaged up a whole bunch for this weekend, Family Day long weekend, which we are spending at Mont Tremblant ski resort.

Have a Happy Valentine's Day!  

The Role of the Estate Trustee (Executor)

Introduction

So, you’re named the Estate Trustee in your father’s Will. What do you do?

First of all, just remember that “Certificate of Appointment of Estate Trustee”is the new word for “probate”  in Ontario.

Jobs Of The Estate Trustee

1. Obtain the Originally signed Will

If the deceased has only a copy of the Will, the lawyer who drew up the Will likely has the original. When you retrieve the Will, make sure to get an Affidavit of Execution of the Will. You should also have the lawyer make at least 4 certified copies of the Will and Affidavit.

2. Arrange for Funeral and Burial

Determine whether there is a prepaid funeral, or any special burial instructions. Also determine whether the deceased filled out organ and tissue donation forms.

Make sure the Funeral Director provides at least 5 original Proof of Death Certificates.

Payment of funeral expenses comes ahead of any other creditor including the beneficiaries. With an account from the funeral director, the bank will authorize payment from the deceased’s account.

3. Open Estate Bank Account

Open a chequing account for the estate as soon as possible as you must give a strict accounting of all money received and disbursed. You will have to attend at the bank for most transactions until you get a Certificate of Appointment of Estate Trustee (probate) so be sure the bank is convenient for you.

You will need the originals of the Will, Affidavit of Execution and Proof of Death Certificate to open the account; have the bank make copies. You will also need two pieces of identification.

4. Notify Government Agencies, etc., of Death

All sources of revenue should be notified of the death as soon as possible. Old age security and Canada Pension plan payments are valid for the month of death; if any further payments are received they must be returned. To avoid this hassle, call Service Canada to register the death. You should also obtain the necessary forms for death benefits, if any, at this time.

Other businesses that may require contact: credit card issuers; insurance companies; investment companies; phone, cable, internet, utilities and other services;

5. Pay the Debts of the Deceased

Determine what the deceased owed at the time of death. Payments to maintain the value of an asset (real estate, automobile) can usually be taken care of by the bank but all other payments may not be permitted without the Certificate of Appointment of Estate Trustee (probate). You should consider placing an advertisement for creditors. If you do not advertise and valid debts are later discovered, you will be personally responsible for payment of such debts.

Income Tax

In most estates, you are required to file (1) a final (terminal) return, (2) a capital gains return (actually a schedule to the terminal return), and (3) an income tax and trust information return for each year or part year the estate is under administration. Depending on the circumstances of the deceased taxpayer, there may be other returns to be filed as well.

As estate trustee, you are personally responsible for all income taxes owed by the deceased to Revenue Canada to the extent of the value of the assets of the estate. If you distribute the money in an estate without obtaining tax clearance, you will be personally responsible for payment of the income tax.

6. Transferring or Selling the Assets

Prepare a complete list of ALL of the assets of the deceased and determine the fair market value of each of them as of the date of death.  If these items are to be divided among several people it would be prudent to have all the beneficiaries sign releases saying that they agree with the division of property.

Many assets will have to be converted into money. It may be best to hire professionals to sell some assets and involve a lawyer to prepare the documents that are required to complete such sales. Note, you may not be able to deal with or transfer some assets without a Certificate of Appointment of Estate Trustee (probate) for example, real estate and large investments.

7. Obtain the Certificate of Appointment of Estate Trustee (probate)

 The Certificate is issued by the Ontario Court; it certifies the death of the person and confirms the appointment of the estate trustee named in the Will. You should employ a lawyer to advise and assist you with this application. It is a daunting task; heavy on procedure and finicky paperwork.

8. Accounting to Beneficiaries

When all of the assets that are to be distributed as is have been distributed, all other assets converted into money, all debts paid, and all legacies paid, you may then distribute the residue to the beneficiaries. Before you distribute the residue have all the beneficiaries sign releases releasing you from claims.

9. Compensation

Estate Trustees are paid, normally based on a percentage of the value of the assets, as follows: 2.5% of capital receipts received and converted into cash; 2.5% of disbursements made by the estate trustee; 2.5% of income received by the estate from investments; 2.5% of revenue disbursements made by the estate trustee.

Canvassing for the Heart and Stroke Foundation

February is Heart Month

Here I am ready to go get donations

 

Canvassing for the Heart and Stroke Foundation

For the past couple of years, I have door to door canvassed for the Heart and Stroke Foundation. Last year I got zero donations. This year I have the same route. I don’t have great expectations for much success. I went out today. It’s -13C and lightly snowing. Again I got nothing. I have to say I find my “neighbours” a little disappointing.

Oh well.

Why I Canvas for Heart and Stroke Foundation

I do this because in September of 2004 my friend Peggy, a woman I went to law school with died of heart failure. She was only 40 years old. She was a wonderful person. I will never forget the day she picked me up to go to the Bar Admission Course in Moncton, New Brunswick. She brought me a cup of coffee. “It’s cream and sugar, hope that’s okay. I didn’t know what you took in it.” she said. That’s the kind of heart she had.

I do this because in January of 2008 my friend Lennart who I met back in my undergraduate days at UNB died of a heart attack. I visited Lennart and his family in Sweden in 2006; I’m so glad I did. I had not seen him in probably over 20 years. We had a wonderful visit and a grand tour of Stockholm.

I do this because in 2010 my cousin Mark didn’t die of heart failure.

Please give generously 

 If someone comes to your door, please give. It doesn’t have to be much.

Obtaining the Certificate of Appointment of Estate Trustee (Probate) in Ontario

Introduction

So, you’re named the Estate Trustee in your widowed mother’s Will. What do you do?

First of all, be aware, you will hear the word “probate” over and over. It drives me crazy when lawyers, bankers and realtors, say, accusingly, “haven’t you probated the Will yet?” They should know better: it’s been almost 20 years since we changed from “probate” to “Certificate of Appointment of Estate Trustee” in Ontario.

Nevertheless, your Google search for “probate in Ontario” will be just as effective, if not more so, as searching “administering an estate in Ontario”.

Is a Certificate of Appointment of Estate Trustee necessary?

If there is real estate or significant monies in investments you will most likely be obliged to obtain a Certificate of Appointment of Estate Trustee, aka “probate”, before you will be able to deal with these assets of the estate. The Certificate of Appointment of Estate Trustee (probate) is a document issued by the Ontario Court in the district where the deceased resided. It certifies the death of the person and confirms the appointment of the estate trustee named in the last Will. 

How do I apply for the Certificate of Appointment of Estate Trustee?

The Application comprises a number of Court forms. The forms are readily available online. At a minimum you will have to file the following:

 

1. Affidavit of Service of Notice of An Application For A Certificate Of Appointment Of Estate Trustee With A Will

A form document entitled Notice of An Application For A Certificate Of Appointment Of Estate Trustee With A Will is sent, by mail, to every beneficiary in the Will with a copy of the Will attached. Once the Notice has been mailed to each beneficiary, the Affidavit of Service can be executed. A copy of the Notice, as mailed is attached as an Exhibit. Someone authorized to take oaths must notarize both the Affidavit and the Exhibit.

 

2. Application for Certificate of Appointment of Estate Trustee with a Will

This document sets out the details of the deceased, the Estate Trustee and the estate. It must be notarized. Ideally, a reasonably accurate monetary valuation of the estate is required as Court fees (probate tax) are paid when the application is filed based on the value of the estate as set out in the Application. It is a bit of a catch 22 because without the Certificate of Appointment some assets cannot be sold and so their value can only be estimated. Note, payment of the fees can be postponed if further documents are filed.

 

3. Certificate of Appointment of Estate Trustee with a Will

This document is a draft of the Order that the Court will issue appointing the Estate Trustee.

 

4. Original of the Will and a copy

 

5. Original Affidavit of Execution of the Will

 

Some Final Caveats

The forms should be filed in exactly as presented. The clerks at the Court are not equipped to determine the validity of forms that differ from the norm and routinely reject them.  It may seem like a simple thing, but obtaining the Certificate is a daunting task; heavy on procedure and finicky paperwork. You would be wise to employ a lawyer to advise and assist you with the application.

A Little Bit About Me -- Personally

The Early Years

I was born in Accra, Ghana to an Officer in the Canadian Army and his British wife. I have no recollection of living there but I think those were some of the best days of my father’s life. Some day I hope to go back there with him. After a childhood of biannual moves throughout Canada and overseas postings to Rome, Italy and Lahr, Germany, my parents were posted to Oslo, Norway and I ended up in school in the tiny town of Clevedon, England. Those were some of the worst days of my life; it was an all girls boarding school and I was sixteen years old! But the holidays in Oslo more than made up for it.

On the bright side, after a year of intense study, I was accepted into the Business Administration program at the University of New Brunswick at the tender age of seventeen. Four years later I graduated with a Bachelor of Arts and knocked around Fredericton, New Brunswick for a couple of years until I managed to get into Law School. Along the way I met a wonderful boy who would become my husband and the father of my two children.

I live in Ottawa, the capital of Canada. I own a big old (circa 1860) house; there is a timber barn and a stone ice house on the property. I have two cats.

Things I Like

I like to travel. One of my favourite trips was in the summer of 1989 when my husband and I crossed into the “East” at Check Point Charlie and made our way by train from Berlin to Budapest. That was the summer that the cold war ended, all hell was breaking lose in the eastern block countries and we were in the thick of it. We saw the lineups at the US embassy in Prague but little did we know until we got to Budapest and were able to read about it in the English papers. I’ve been back to Berlin twice, on business, and while unification is wonderful, I will never forget the days I spend in East Berlin.

Another fantastic trip was in the summer of 2007 when we went to Chile and Peru; Chile for skiing/snowboarding and Peru for the Amazon and the Gringo (aka Bingo) trail (they play Bingo on the buses). It was an awesome five weeks of family fun.

I like to read. I am a voracious reader with very few scruples; I’ll read almost anything. My favourite genre is the spy novel (hence Check Point Charlie above) which I was introduced to in an English course at University – the literature of fear and suspense. Oddly, I do not belong to a book club but I do belong to a movie club. While at University I was a projectionist and have always loved the big screen.

I like to bake – cakes, cookies, squares, breads. I don’t like to cook.

I snowboard (I used to ski) and play Ultimate Frisbee. Every summer we do at least one canoe camping trip – we used to do up to ten days, lately it’s just been four/five day trips.

A Little Bit About Me -- Professionally

My Practice: From Trade-mark Law to Wills

I haven’t always been practicing estate planning—before my current practice, I worked in trade-mark law.

I was twenty-three years old when I started law school. At the cost of aging myself, I wanted to be Joyce Davenport (the public defender on Hill Street Blues – does anybody remember that show, I wonder). But a summer articling with the Crown Prosecutor’s Office and an entertaining course on Intellectual Property changed all that and I spent the first twenty or so years of my career doing mostly Trade-mark Law.

About five years ago, a friend of mine started a part time Wills and Estates practice and I was helping him acquire the trade-mark “Wills On Wheels”. A few years later he suggested I help him out with his practice. I was very reluctant; my experience was limited to a mandatory law class on Wills. Although I still had the text book -- on the office bookshelf, mostly for show -- I certainly hadn’t opened it in decades. Heck, I didn’t even have a Will myself.

But by then I had had my own Trade-mark law practice for a few years. I had no boss, no partners, no employees; I was free to do as I pleased. My clients were mostly foreign and the practice almost entirely electronic. I had a smartphone and worked whenever and wherever I wanted. Life was pretty sweet except, although I didn’t realize it at the time, I was starved for human contact in my professional life.

Starting My Estate Planning Firm

And so, I threw caution to the wind, read some books about Wills and took on his overflow work. I soon realized that I had real empathy and, I think, talent for this work. And, more importantly, I really, really enjoyed it. This was not dull dreary Bleak House kind of stuff—Of course, it wasn’t Grisham’s The Testament either, but it could be!

With the realization that I like this work, it’s time to step it up a notch or two. Time to spread my wings and not just rely on the overflow but really start to market myself. I am that butterfly busting out of it’s cocoon and this blog is my wings.

My Philosophy

My goal is to deliver personalized high quality legal services in a direct, approachable and cost effective way. I implement the efficient use of technology to reduce or eliminate bottom line costs to my clients. I am part of Wills on Wheels and offer mobile services; if a client prefers not to come to my office, I offer a home visit Will writing service. I meet with clients in their homes or at some other convenient place at no extra cost.

People love it that they don’t have to meet me in my office at my convenience. And, I love it that they are so grateful and appreciative.