C'est la Vie Estate Law Blog

Having a U.S. executor in a Canadian will can present practical, legal, and tax implications. Executors are responsible for administering the estate, and their residency can affect the estate’s administration and tax status, particularly when one is outside of Canada. Here are the key considerations: 1. Residency and Tax Implications Canadian Estate Residency : An estate is generally considered a resident of the country where the majority of its executors reside. If a U.S. co-executor is involved, the estate may be deemed a non-resident for Canadian tax purposes, leading to: Potential exposure to U.S. estate taxes. Loss of graduated tax rates on income earned by the estate in Canada, as the estate could be taxed as a trust for non-residents. Tax Filings in Both Countries : The co-executor in the U.S. may need to file returns in both Canada and the U.S., increasing complexity and administrative burden. 2. Practical Challenges Cross-Border Coordination : The U.S.-based co-executor may fa...

  If you’re acting as an attorney for property and the grantor has dementia, deciding whether gifts can be given requires balancing their wishes with your legal responsibilities under Ontario’s Substitute Decisions Act , 1992 (SDA) . Your Authority to Give Gifts As an attorney for property, you can only make gifts on the grantor’s behalf if: Explicitly Authorized : The Power of Attorney (POA) document specifically permits gifting. Statutory Rules Apply : If the POA document is silent, the SDA allows gifts under these conditions: The grantor’s financial needs (current and future) are secure. The gift is consistent with the grantor’s past practices or known intentions. Assessing the Grantor’s Wishes If the grantor, even with dementia, expresses a desire to give a gift: Evaluate their capacity : Ensure they understand the nature, value, and consequences of the gift. If their capacity is uncertain, seek a professional assessment. Respect their history : Consider their past gifting prac...

What is Copyright? Copyright is a legal right protecting the expression of ideas in various forms, including literature, music, art, and performances. It is an intangible form of property that lasts for the creator’s lifetime plus 50 years after death. But once a creator dies, who manages and benefits from their copyrights? Who Inherits Copyrights? If a copyright holder has a Will and specifies beneficiaries for their copyrights, those individuals inherit the rights. If copyrights are not mentioned, they fall into the estate's residue and are handled according to the Will. Without a Will, local intestacy laws determine who inherits the copyrights, which can lead to disputes and uncertainty. Case Study: Prince When Prince died in 2016 without a Will, his $156 million estate, including valuable copyrights, was subject to lengthy legal battles and was ultimately divided among his half-siblings under Minnesota intestacy laws. Prince's copyrights were left without clear instructio...

  Even if your affairs seem simple or you don’t own much, there are several important reasons to consider going to a lawyer to make your will: 1. Avoiding Mistakes: Making a will on your own can lead to errors or omissions that could render your will invalid or cause confusion. Lawyers ensure that your will complies with Ontario’s legal requirements, such as proper witnessing and signing, which reduces the risk of your will being challenged in court. 2. Customizing for Specific Needs: Even simple estates can have nuances. For example, you may want to leave personal items to specific people, designate guardians for minor children, or make provisions for charitable donations. A lawyer can help tailor the will to meet these wishes, ensuring clarity and precision. 3. Ensuring Proper Execution: Lawyers understand how to structure your will to avoid ambiguity or conflicts between beneficiaries. They can also ensure that your will is properly executed and meets the formalities required to...

As of January 1, 2022, amendments to Ontario's Succession Law Reform Act (SLRA) can disqualify separated spouses from inheriting from one another. These changes apply whether a person has a Will (testate) or dies without one (intestate). To inherit despite separation, a Will must explicitly state such an intention. These amendments ensure that separated spouses are treated similarly to divorced individuals regarding inheritance rights. Previously, only divorced spouses were barred from inheriting under an ex-spouse's Will or intestate estate. However, it’s crucial to note that there are specific timing criteria, and the new regulations do not apply to all separated spouses. The changes stem from Bill 245 – the Accelerating Access to Justice Act, 2021. Section 17 of the Succession Law Reform Act was revised to revoke gifts to a "separated spouse" in a Will, mirroring the rules for divorced individuals. Additionally, Section 43.1 was introduced, stipulating that intesta...

Understanding Capacity in Will-Making in Ontario In Ontario, the concept of capacity is crucial when it comes to creating a valid Will. Capacity refers to an individual’s mental ability to understand the nature and consequences of making a Will, as well as the implications of their decisions regarding the distribution of their estate. To have the legal capacity to make a Will, a testator (the person making the Will) must generally meet three criteria: they must understand the nature of the act of making a Will, recognize the extent of their assets, and comprehend who their beneficiaries are and the effects of their choices. This means that even if someone has a medical condition or is receiving treatment, they may still possess the capacity to make a Will, provided they can satisfy these requirements. In Ontario, there is no strict age for capacity, but individuals must be at least 18 years old. Importantly, the law recognizes that capacity can fluctuate; thus, it’s advisable for those...