C'est la Vie Estate Law Blog

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 SLRA was revised to revoke gifts to a "separated spouse" in a Will, mirroring the rules for divorced individuals.  For the purposes of these amendments, spouses are considered "separated" if: ...

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...

 What Happens if Someone Dies Without a Will in Ontario? In Ontario, when a person dies without a Will, they are said to have died "intestate." This situation can create challenges for the deceased’s loved ones, as the distribution of their assets and the management of their estate are dictated by provincial laws rather than personal wishes. Here’s a breakdown of what happens in such cases. 1. Intestate Succession Law Ontario's intestacy laws govern how the deceased’s assets will be distributed. The distribution follows a hierarchy established by the Succession Law Reform Act . The first in line are typically spouses and children. If there are no surviving children, the estate may go to parents, siblings, or further relatives in a specific order. If no relatives can be found, the estate may ultimately be transferred to the government. 2. Estate Administration Without a Will, no one is automatically appointed to administer the estate. However, an interested party, often a...

Understanding Estate Administration Tax in Ontario When administering the estate of a deceased person in Ontario, one important aspect to be aware of is the Estate Administration Tax (EAT). This tax, sometimes known as probate tax, is a fee levied by the provincial government to process the probate application and grant legal authority to execute the estate. Here’s a straightforward guide to understanding this tax. What is Estate Administration Tax? Estate Administration Tax is a fee charged by the Ontario government on the value of an estate that goes through the probate process. This tax is required to obtain a Certificate of Appointment of Estate Trustee (often referred to as a “grant of probate”), which legally authorizes the executor or administrator to manage and distribute the deceased’s assets. When estate planners peak about probate tax planning, we mean arranging your affairs to reduce the amount of this tax that will be payable.  How is the Tax Calculated? The amount o...

  Understanding Probate in Ontario Probate is a term you might come across when dealing with the estate of someone who has died. In Ontario, probate is an important legal process that can impact how an estate is managed and distributed. Here’s a brief explanation of what probate is and why it matters. What is Probate? Probate is the legal process wherein:  1) A deceased person’s Will is validated by the court. It involves confirming that the Will is genuine and that the person named as the executor (the individual responsible for managing the estate) has the legal authority to handle the estate’s affairs.  2) If there is no Will, the court appoints an administrator to manage the estate according to intestacy laws. Why is Probate Necessary? Legal Authority : Probate provides the executor or administrator with official recognition of their role. This legal authority is necessary to deal with banks, transfer property titles, and manage other aspects of the estate. Ensuring V...

You might think that making a will is only for people with large estates or valuable possessions. However, even if you don’t own a lot of assets, having a Will is still incredibly important. Here’s why you should consider making one, no matter the size of your estate. 1. Control Over Your Wishes: A Will lets you decide exactly how you want your belongings and any other assets distributed. Whether it’s sentimental items like family heirlooms, personal effects, or even specific instructions for your digital assets, a Will ensures that your wishes are followed. Without a Will, the law dictates how your things are divided, which might not align with your preferences. 2. Simplify the Process for Loved Ones: Even if your assets are modest, dealing with an estate without a Will can create extra stress and confusion for your loved ones. Having a Will makes the process smoother and more straightforward, helping to reduce the emotional and administrative burden on your family during a difficult ...

Did you know that in Ontario, a minor child (under 18) is not entitled to directly inherit funds? However, this doesn’t prevent them from being named as beneficiaries. Since minors cannot manage their own property until they reach 18, here’s how it’s typically handled: If there is a Will: The Will can establish a trust and appoint a trustee, who could be the estate trustee (executor) or another individual. This trustee will manage the inheritance according to the Will’s terms. This method provides the most control, allowing the testator to set conditions for when and how funds are distributed. If There Is a Will Without a Trust Provision or No Will: For Amounts Over $35,000: The child's inheritance is paid into court, managed by the Accountant of the Superior Court of Justice , until the child turns 18. Alternatively, the court may appoint a guardian of property to manage the funds. If you need to access funds for the child’s expenses, you can request money through the Office of th...