Are you trying to learn estate law? We put together this article to explain the things you should think about when doing estate planning. We have estate law lawyers in both BC and Ontario.
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Are you looking for an estate lawyer?
We have many estate lawyers all over Ontario and BC. We will connect you with the best one for your case.
You can also reach out via the live-chat function. Further, you can book a consultation on our main webpage. A lawyer near you will then call you at the time that you pick.
Approach Problems With Expert Legal Advice
An estate lawyer can do estate planning or estate litigation. When there is a problem with an estate, a litigator comes in and tries to fix the situation. Many estate cases represent one of the kids when they feel they were incorrectly left out of the will. A kid might feel that a nurse had their mother sign over the title of their house under pressure.
There are different types of lawyers. Some estate lawyers focus on what the law says. They try to show the law to the judge, and they hope this will lead to a favourable judgment for their client.
There are some lawyers who don’t focus much on the law at all. Instead, they focus on using tricks to put pressure on the other side. Senior lawyers will know a lot of tricks to use. Keep in mind that lawyers cannot do anything illegal.
You should hire an estate law lawyer that fits with your personality.
Estate Law Lawyer Services
- doing the administration of an estate
- estate legal issues
- doing estate planning
- dealing with real estate
- estates and trusts
- dealing with life insurance
- handling bank accounts
- power of attorney
Estates And Trusts and Real Property
It’s important to keep your integrity while dealing with estate law. You will notice that when someone dies, a lot of people might become money hungry. You get to see different sides to family and friends that you might be used to.
If you need to start a lawsuit, your lawyer will file a pleading. This is a document that will explain your position and start the lawsuit. The other side (maybe the estate) will have to respond within a certain period of time.
If they do not respond, you will likely get a default judgment. That means you automatically win. The other side might also have to pay your legal costs.
Need an experienced estate lawyer? Contact us.
Estate Planning with Estate Lawyers
It’s important to make sure that the estate law lawyer that you hire understands taxes. When someone dies, there are major tax applications. If you hire a lawyer to create a last will and testament ( a will) and they don’t understand taxes, half the money might go to the government.
Obviously, people want to pay the minimum amount of taxes possible. Further, you want your inheritance to go to charity or your family, not the government. Also, if a lawyer is an estate planner, they need to focus on knowing the tax law.
Most people want to leave their kids a legacy, not just an inheritance. If you leave them an inheritance, the kids come to town and pick up the assets and sell them.
Burn through the inheritance
Most people would burn through the inheritance within a few years. With a legacy, the assets get left in a trust, and the money gets distributed over time.
You can even leave things for the grandkids when they turn of age. It is possible to do a lot more with an estate trust.
You want to think about who has shaped your life over the years. Further, maybe there is someone who mentored you who is not in the family. Therefore, you might want to consider adding them in your last will.
Get Legal Advice For Estate Law
It’s also important to think about if you want to leave money to charity. Have you lost loved ones to a specific issue? Maybe it was heart disease or cancer? Some people want to leave money to the grandkids instead of their children. They feel they have done enough for their kids over the years.
You can use a trust to motivate your kids or grandchildren to hit specific goals. Maybe if your grandchild gets into Yale or Harvard they will receive $100,000. If they get into a lower school they will receive $50,000. You can set the family estate trust the way you want it.
You don’t want to create a “trust fund baby.” Where the money unmotivates the child to try and make their own way in life. Instead, they spend their time partying in Las Vegas. Also, think about if someone wins the lottery.
They can’t handle their new life and they start drinking too much and buy a fast sports car. A few years later they crash the car and die. This sort of thing happens all the time.
What to Do With a Will After a Death?
Your common-law spouse of four years, Ben, has died at work from a massive stroke. What to do with a will after death?
Neither of you saw it coming. You lifted weights together every morning. How could this happen?
You’re still grieving when his ex-wife lets herself into his Bracebridge cottage with her spare key. Ann’s a hard-nosed realtor who says he left her the ’70s bungalow in his will.
Despite owning a 2,000-square-foot townhouse in Ottawa, she has already moved in with her perky Pekinese, Lily, and their adorable six-year-old, ginger-haired Charlotte.
You love that place. Most of all, it reminds you of the great times you had together, cuddled up in your hand-crafted Adirondack chairs on the cedar deck, watching the sunset over the Muskoka River.
You can see her there now, warming herself by the granite fireplace while you seeth in your frigid, rented North York condo.
You frantically rifle through Ben’s wallet, searching for his lawyer’s business card and race over to his glass and chrome office. It’s the first time you have met face to face. Your eyes glaze over when he asks if you had a joint will.
You meant to rewrite your wills. You just never got to it.
What to Do With a Will After a Death?
Ben wrote a will in 2009 when he and Ann were married and updated it in 2012 after Charlotte was born. The couple separated in 2014 and has been living apart since. They shared custody of Charlotte, who has been living with her mother since the separation, in their Ottawa townhouse.
Ben bought the cottage in 2007 when sales were on a downswing, for $89,000 and fixed it up. Ann, who has always earned more than Ben, bought the townhouse for $375,000 in 2008 and it is currently valued at $650,000. Ben has been using the cottage exclusively, but willed it to Ann, with Charlotte as her beneficiary.
Ben could have sold the cottage after he married and before the couple separated. Since that didn’t happen, both the townhouse and cottage are considered matrimonial homes under Ontario family law, despite the fact Ben, Ann and Charlotte spent most of their time at the townhouse. The cottage is now worth $259,000.
Unfortunately for you, under Ontario estate law, a will is not affected by separation. Even though you may have been common-law spouses for several years, his marriage survived his death for wills and estate purposes.
Without a divorce or change in the will, the beneficiaries are unaffected by your common-law status. That means any married spouse retains title to matrimonial property and designated beneficiaries have inheritance rights.
A former spouse may even make a financial claim against the remaining estate for the ongoing financial support they won’t receive due to death. That claim will be due before the balance of the estate can be divided up.
While you have no automatic right to equalization of the property after the death of a common-law spouse, there are some exceptions. If you were financially dependent on your common-law spouse, you could file a claim against their estate for support.
In Ontario, common-law spouses must make adequate provisions for dependents in their will.
Life insurance policy during an estate law dispute
As much as you care about Charlotte’s feelings, now is the time to contact a lawyer. Besides the cottage, you’ll need to know if Ann is also the beneficiary for Ben’s RRSPs, RRIFs, pension plans or life insurance policy.
The ending could have been less stressful for you. If only Ben had updated his will. What can you do differently next time? Is divorce worth the cost?
Let’s start with Ben’s finances. The cottage and townhouse Ben and Ann owned have gone up by $445,000 since they married in 2009. Ann brought the townhouse into the marriage. It has gone up by 58 percent. Ben owned the cottage when they married. It’s up in value by 34 percent.
Since Ben and Ann combined their assets when they married, they each had a claim on any profits from selling the cottage and townhouse. The cottage was just an occasional weekend retreat and Ben lived there exclusively after they separated.
Things To Know About Estate Law
Ben couldn’t afford to buy Ann’s share of the cottage or townhouse after they separated. Since they each had a home to live in and worried about how Charlotte would cope with their split, they never really discussed selling either property.
Had Ben divorced Ann, that would have forced a decision on how to share their joint assets. If they couldn’t agree, the courts could have arranged for the cottage to be sold. (Ontario’s Partition Act can force divorcing spouses who can’t agree to sell joint assets.)
Ben and Ann would have gotten an equal share of the 34 percent bump in the cottage’s value. Since the cottage went up by $170,000 since they married, Ben’s share would have been half ($85,000), minus what it cost to sell.
An equalization payment, also called equalization of net family property, is what one spouse owes another after assets are divided.
Want to know “What to do with a will after a death?” You can reach us via the live chat button on the bottom right corner.
Family’s Matrimonial Home and Estate Law
The same would apply to Ben’s and Ann’s townhouse. The townhouse was the family’s matrimonial home. It was where Ben, Ann and Charlotte usually lived as a family.
A matrimonial home holds many family memories. For children, staying there can make a divorce less traumatic. A court sees past these emotions. It only considers the real property value of the home and preserves each spouse’s right to divide marital property.
But since Ann and Charlotte wanted to stay in Ottawa after Ben left, Ann could have bought out Ben’s share. With the townhouse now worth $275,000 more than when Ann bought it, his share would have been $137,500 (50 percent) before sales costs.
Adjust financially after a death
Even before any other assets Ben and Ann owned were divided, his estate would have been richer by $222,500. With you now listed on his will instead of Ann, that money could have helped you adjust financially after his death. While it may seem cold-hearted to think of money at a time like this, you have your own interests to protect.
Next time you move in together or plan to marry, but updating your wills at the top of your list. Wills and estates lawyers can advise you on making or updating your wills. What to do with a will after death? Talk to a lawyer.
Are you wondering why you need power of attorney? Most people know that they should have a will in place. If you are curious about how many copies of the power of attorney you need, speak to a lawyer.
This is done to make sure that if you pass away that your loved ones will be taken care of. They will have some direction as to what you wish to have done with your possessions.
Many people don’t consider what happens in the case where you are injured and unresponsive. If you suffer a head injury and can no longer speak or express yourself, what happens then?
Why Do People Have POA?
One common reason is that the person making POA will not be able to look after decisions and obligations when they are injured or away travelling in another country. Someone might give POA the ability to pay bills while they are away travelling.
If someone is in the hospital, their bills will also still have to be paid. Insurance for the house and car will still have to be paid. The mortgage must still get paid.
POA is not expensive, so everyone should consider doing it. If you want to know how many POA copies you need, you should book a free consultation with a law firm.
What is a Power of Attorney?
It is a legal document that you give to someone to give them the power to make decisions for you, or to able to do things for you. It can be:
- Paying bills
- Selling assets
- Making health decision
- Taking money out of your bank account
- Making investment
- Many other things
The person that you give power to is called the “attorney.” Please note that this person does not have to be an attorney or a lawyer. The term is very confusing and should probably be changed.
The difference between a will and the power of attorney (POA) is that POA is in effect when you are alive, a will takes effect when you die.
Who Should I pick as Power of Attorney?
There are two minimum criteria to be appointed as POA:
- The person understands what they need to do (it’s better that they speak to an estate lawyer first)
- They must be 19 years old or older
Most people pick a family member. You can also pick the government (public guardian) or a trust company. The “attorney” will have a lot of power, so give it some thought before deciding.
It’s also best if you speak to the person to make sure they want to do it. It is also possible to name multiple people in case something happens to one of the “attorneys.”
Who makes your decisions for you and what happens to your assets? Most young adults would not consider this to be an issue. Most young adults do not think about getting wills created as they feel it is something they can always deal with when they are older.
However, peace of mind and security that can be created in a few short hours now, could save days and potentially years of stressful litigation for family members and friends in the far future.
Why You Need Power of Attorney
When consulting a lawyer about estate planning, you should always ask about the power of attorney. Although the power of attorney documents are typically short, seemingly unimportant documents, those few pieces of paper can save your loved ones tens of thousands of dollars in the long run.
If you do not have a signed power of attorney to deal with your healthcare and property, your family will likely have to apply for guardianship over you. This process can take sometimes several months or even longer if there are multiple people trying to obtain guardianship status.
You should have discussions surrounding who you want to be in charge of your investments. You also want to think about your vehicles and specific assets. This can all be encompassed into a power of attorney.
Estate Law With Multiple Children
These directives are vital in situations where multiple children, siblings, and sometimes spouses and ex-spouses are present. You want to think about who should actually be the person acting in your best interest.
When no power of attorney exists anyone of these persons can bring their own application. They can be confirmed as your guardian. This is true even if their intentions are self-motivated.
Do you have questions about inheritance and divorce? Losing a family member is never easy to deal with. Sometimes there is a silver lining in that you may receive some sort of inheritance.
This happens as a gift from your loved one who has passed on. The last thing you want to deal with is then having to fight with your ex as to whether or not you get to keep the last gift you received from a close friend or relative.
There are strategies and clauses that you can incorporate with the help of your lawyer to ensure that your inheritance remains yours and yours alone.
Inheritance and Estate Law
In order to keep your inheritance solely for yourself, there are some steps that you should take to try to safeguard it. First and foremost, you can investigate the terms of the person’s will who is giving you the inheritance.
In order to remain enforceable you should always keep your inherited funds separate and apart from any joint bank accounts. You should also keep it away from family accounts. This is where both parties have access to the money.
The money should also not be used to pay off any joint debts. Also, avoid joint bills that are considered part of the family assets or debts.
If your inheritance intermingles with any of the family debts or assets it is highly likely that at least a portion of the inheritance will be considered divisible as family property.
Can a divorced spouse inherit?
If you inherit real property such as a vehicle, home, or cabin, make sure to only register the property in your sole name. You don’t want to register in the name of your spouse.
Do you and your spouse both use the property on a regular basis? Then the property could very well be deemed to be part of the family property you will need to divide in the case of a divorce.
The best way to ensure that your inheritance remains solely yours is to have a written agreement. This would be drawn up by your lawyer. It would outline how such inherited funds or items are to be utilized within your relationship in the future. This would protect your assets from having to be divided during a divorce.
Are inherited assets protected?
During your marriage you were able to obtain new furniture, vehicles maybe even a cottage. When divorce proceedings are started it can be difficult to fairly divide the family assets between you and your spouse, even more so if one of you wants more than just their half share.
It is important to remember that not everything you own is divisible through a divorce and you should review all of your property holdings with a ClearWay Law lawyer before agreeing on any sort of property division.
The family home is treated with special circumstances in family law proceedings. Items obtained prior to the wedding date are unique.
The court recognizes that whether it is an investment, items, or property holding if you were the owner of it before the date of marriage then it is exempt from dividing between yourself and your former spouse. There are specific circumstances to be aware of when dealing with such items.
The total value of the investment at the date of marriage shall be recognized as an exemption from the joint family property. If the investment was continued during the marriage and has increased, the amount of the increase that occurred between the wedding date and your date of separation is technically up for division between spouses.
Things such as vehicles, collections, or clothing will remain your property. This is unless it has been combined or used for the benefit of the family as a whole. Did you have a new truck at the start of your marriage but used it as the family vehicle? Did you then sell it to purchase a new vehicle that has both you and your spouse’s names on it? That vehicle might be considered joint family property.
Similar to investments, your landholdings and their value as of the date of marriage can be exempt from division. Your spouse may claim that they are entitled to a portion of the increase in the value of the land. This might be counted while you owned it during the marriage. Make sure to show that you alone were responsible.
You need to show you did not use joint family funds to upkeep the property. You will try to show you were the sole owner and operator of the land in question. This is important if you want to keep the full value of the land from being divided.
What Are The Assets?
Is the land in a cabin or vacation home? Did you and your spouse frequently reside in it on a seasonal basis? Then it may be considered as a secondary family home. If this can be proven in the Ontario family court, the full value of the property may be divisible between the two of you.
When faced with property issues you should always discuss them in-depth with a family lawyer. You need to know all of your options and strategies for dealing with such issues. You can also reach out to us to discuss Inheritance and Divorce.
Inheritance during marriage: estate law basic overview
Most commonly, inheritances should not be included or subject to any distribution. Inheritances will not normally be acknowledged as marital property. In line with that, inheritances are therefore seen as separate property.
It belongs to a person who got or received the inheritance. And so it won’t normally be allowed to be divided between the two parties during a divorce.
If the inheritance is shared between the two, an inheritance can be looked at differently. This is based on the rules that differ greatly among provinces. Was the inheritance deposited into a couple’s joint bank account? Was it was used for any joint marital expenses (also called commingling of inheritance?)
Then the inheritance can lose its label as separate property. Another thing, if the inheritance in question is also used to make improvements on the main residence of the couple, there’s a possibility that it will also lose its separate property status.
So, if you don’t want your inheritance to end up being split up between you and your former spouse, then refrain from doing anything that would entail it to be labelled as commingled. Always take things like this into consideration before deciding.
Can your spouse get your inheritance in a divorce?
As per the Family Law Act, any increase in the inheritance value is counted as a family property even if the inheritance is an excluded property.
For an instance, you have an inherited property that is worth $600,000 and at your mediation or trial period, your inherited property is worth $800,000, the $200,000 difference is now considered as a family property which is to be evenly divided.
Inheritance acquired before the marriage
There are certain scenarios that arise that a spouse would enter a marriage with some money or wealth that they attained. This can either happen through inheritance or otherwise.
We have laws considering how an inheritance acquired before marriage would be looked at in the event of a divorce. If the funds that were inherited were deposited into a joint account or if the marital funds were somehow deposited into the inheritance account, then we can be sure that commingling has already occurred.
If no commingling was done, then the inheritance would be otherwise considered separate property, and the person who’s meant to receive it will get the whole thing, even if the divorce is finalized.
Just to be on the safe side, to make sure your inheritance is well protected, do a prenuptial agreement so that all pre-marital assets can be well defined as to who has ownership of those and how a couple would approach any future inheritances.
Can you lose inheritance under estate law?
The rule of thumb is that any funds or assets that were commingled converts everything into the marital property, some courts might only hold a portion or even none of the commingled funds may be allowed to be considered as separate property if the party in question can prove or effectively demonstrate that the funds were never intended to be shared, to begin with.
But this is a bit tedious and it involves a very high burden of contesting proof that will contest the presumption of the involved shared funds.
Take note, always keep all of your detailed records and notations about any inheritances you have received in the event that your spouse may try to stake a claim of an ownership interest in those properties or assets if a divorce would occur.
A person who’s looking to argue or contest the sharing of any or all inheritances involved will probably need the advice of an experienced family lawyer.
Can My Ex Claim My Inheritance?
Another situation to be considered is called Transmutation. Whatever inherited property can be considered a joint property if you assigned ownership of that property to your partner.
Let’s say you inherited a house from your parents when they passed away. You decided to put your spouse’s name to the deed of that inherited house. Now your spouse will be entitled and will have an ownership interest in that property. If the divorce is finalized, it can be considered as a joint property instead of a separate property.
So all things considered, at the start of any relationship, spouses will have no problems sharing inheritances with their other half, only to regret doing it once the relationship goes south and divorce is needed.
Obtaining concrete proof is critical to getting sole custody of any inheritance. Are you about to receive an inheritance and you’re still married? You might want to know all the options that you have at your disposal.
You will also want to be sure it won’t be considered marital property. It would be wise to get an attorney who knows how to handle this type of situation.
Inheritance Disputes and Estate Law
If it’s money that you’re inheriting, you might want to consider opening up a bank account under your own name only. You would then deposit the funds with the sole goal of leaving them untouched until you can consult with an attorney. You would then go and get legal advice. By doing so, you will be informed of the best course of action to take and what your rights are.
You can then decide and act appropriately. Attorneys will make sure you will be provided with professional insights. You will get all the right assessments and recommendations on what course of action to take.
In conclusion, you can also use an estate trust to encourage someone to start a business. Speak to an estate law lawyer about setting up your estate.
Author: Alistair Vigier is the CEO of ClearWay Law