Wills, Trusts and Estates
Estate Planning
Wills
A Will is an essential component of any estate plan. It is through the use of a Will that you are able to express your after death wishes. A properly prepared Will enables you to:
- clearly set out the manner in which your property is to be distributed upon death;
- ensure that adequate provision is made for your family and loved ones;
- minimize the tax consequences triggered upon your death;
- avoid inconvenience for family; and
- reduce the potential for litigation.
Anyone who dies without a valid Will is deemed to have died “intestate” and the estate of such a person will be distributed in accordance with the rules set out in the Succession Law Reform Act, and may not be what was truly intended by the deceased.
It is important that your Will be prepared by professionals who possess the expertise and knowledge of the ever-changing laws associated with estate planning (especially with respect to taxes) so as to ensure that the Will is not only valid, but also achieves all of the objectives mentioned above.
Powers of Attorney
A power of attorney is an authority given by a person (the “grantor”) to another person (the “attorney”) to act on behalf of the grantor in conducting his or her financial affairs, or in making decisions relating to the personal care of the grantor.
A power of attorney is a useful estate planning tool in that it provides a mechanism for you to maintain some element of control over the administration of your affairs should you become incapacitated prior to death.
There are two (2) types of powers of attorney:
- continuing power of attorney for property; and
- power of attorney for personal care
Power of Attorney for Property
A continuing power of attorney for property permits the attorney to make decisions on behalf of the grantor with respect to the property and the financial affairs of the grantor. This decision-making ability would include the ability to execute documents on behalf of the grantor, pay the grantor’s bills, and dispose of property of the grantor.
Power of Attorney for Personal Care (a.k.a “Living Will”)
A power of attorney for personal care permits the attorney to make decisions on behalf of the grantor with respect to personal care issues such as health care, nutrition and shelter, if and when the grantor becomes incapable of making such decisions for himself or herself.
Trusts
The trust is another useful component of any estate plan. A trust is a property interest held by one person (i.e. the trustee) at the request of another (i.e. the settler) for the benefit of a third party (i.e. the beneficiary). A key feature of the trust is the separation of legal and beneficial ownership. The trustee retains legal ownership of the property subject to the trust, while the beneficiary retains beneficial ownership of the trust property. The use of a trust permits individuals to:
- provide financial assistance to adult children while postponing the time at which such children will obtain full and complete control over the trust property;
- provide for the maintenance and care of individuals who for medical or other reasons are not able to manage their own affairs;
- provide for the education of their children or grandchildren;
- provide for the maintenance of persons for whom it is desired to give the enjoyment of the trust property without the powers of control or management.
The lawyers of the Wills & Estates Practice Group are well-versed in preparing trusts in such a manner so as to ensure that the ones you care for are adequately provided for following your death.
Business Succession Planning
Many business owners wish to pass on their business to their children or grandchildren following their death. Our lawyers can implement a variety of strategies designed to minimize any disruption upon the transfer of the business from one generation to the next while at the same time minimizing the taxes associated with any such transfer.
Taxation
One of the primary objectives of any estate plan is to transfer your estate to your beneficiaries in the most tax-efficient manner. The lawyers of the Wills & Estates Practice Group will work with you and your other professional advisors (i.e. accountant and financial planner) to develop and implement strategies which will achieve this objective.
Charitable Giving
Many individuals desire that a portion of their estate to be given to a charitable or philanthropic organization in which they have been involved or for which they feel passionate. The lawyers in the Wills & Estates Practice Group will ensure that any such bequest is made in a tax-efficient manner so as maximize the benefit received by the charity and in turn the cause associated therewith.
ESTATE ADMINISTRATION
The Wills & Estates Practice Group provides legal advice and assistance to Executors or Estate Trustees (herein referred to as the “Estate Trustee”) with respect to all aspects of the administration of an estate including, but not limited to:
- interpretation of wills and trusts;
- probate proceedings;
- distribution of assets to beneficiaries;
- preparation of accounts for estates and trusts; and
- winding-up of the estate.
It is important that the Estate Trustee understand the legal duties and obligations imposed upon him or her by virtue of their designation as Estate Trustee and the serious consequences associated with not complying with such duties and obligations. The lawyers of the Wills & Estates Practice Group possess the experience and expertise to assist the Estate Trustee with the complex issues involved in the administration of the estate.
ESTATE LITIGATION
Our Wills & Estates Practice Group has extensive experience representing both Estate Trustees and beneficiaries in contested or disputed estate matters, including, but not limited to:
- applications seeking the advice and direction from court with respect to estate matters
- claims made by beneficiaries challenging the validity of a Will;
- claims made by spouses or dependents against the estate;
- claims involving constructive or resulting trusts;
- applications for orders for guardianship of incapable persons;
- claims for the removal of an Estate Trustee; and
- passing of accounts.
It is important that when involved in or faced with the prospect of estate litigation that the Estate Trustee or beneficiary be represented by solicitors who possess experience and expertise in the area of estate litigation. The lawyers of the Wills & Estates Practice Group possess such experience and expertise.
