Estate Planning

Estate plans that are tailored to your personal and financial needs. We understand the legal and tax issues, but also the emotional and complex family dynamics that are often associated with this process. Illness, incapacity and death can be difficult to discuss. We guide you with clarity and compassion – with empathy – throughout your estate planning journey.

FAQ

As your wealth increases and as your family grows, the complexities of your estate plan also increase. Estate planning involves anticipating and planning for the transfer of assets (e.g. property and money) when a person dies, as well as a variety of other important considerations such as:

  • Who will care for you if you become sick or incapacitated?
  • Who will care for your property, (assets and liabilities), if you become sick or incapacitated?
  • Who will care for your children? Your loved ones? What happens to them when you die?
  • How will my dependents with special needs be protected?
  • How should I manage the tax on my estate? How should my assets be divided?
  • Who should be responsible (be Executor/Trustee) for my Estate?

Wills, trusts and powers of attorney are among the most important documents a person makes in their lifetime. They have massive effects on a family and on finances.

An Estate is the property and assets that a person owns or has a legal interest in. The term is often used to describe the assets and liabilities left by a person after death.

You're not legally required to prepare a will. However, if you don't have a will, the laws in your province or jurisdiction will determine how your estate is divided. Your Will is the easiest and most effective way to tell others how you want your property and possessions – your estate – to be distributed when you die.

Even if you don't have much money or property, it's still a good idea to have a Will so you can name a trustee for you estate and guardian for your children, to protect your children and make it clear who you want making decisions after you die. In addition, there are many opportunities for income and probate tax planning that are simply not available to you if you do not have a Will.

Your Will is the easiest and most effective way to tell others how you want your property and possessions – your estate – to be distributed. Even if you don't have much money or property, it's still a good idea to have a Will so you can name an executor and guardian for your children, to protect your children and make it clear who you want making decisions after you die.

In addition, there are many opportunities for income and probate tax planning that are simply not available to you if you do not have a Will.

A Trust is like a funnel with restrictions, created to hold property or assets for the benefit of a particular person called the beneficiary. It is managed by a person called a trustee, who has an obligation to deal with the property for the beneficiary of the trust, as per the terms of the trust. There are many different kinds of trusts.

A testamentary trust is a trust or estate that is generally created on and as result of the death of the person. The terms of the trust are established by the Will or by a court order. If the assets are not distributed to the beneficiaries according to the terms of the Will, the testamentary trust may become an inter vivos trust.

An inter vivos trust is a trust that is not a testamentary trust. There are many different types of inter vivos trusts. Some examples include:

  • Joint spousal or common-law partner trust
    • The settlor and the settlor's spouse or common-law partner are entitled to receive all the income that may arise from the trust before the later of their deaths. They are the only persons who can receive, or get the use of, any income or capital of the trust before the later of their deaths.
  • Henson Trust
    • A Henson trust is an arrangement in which the Beneficiary is considered not to have any legal claim to the property held in Trust, and therefore, the property is not considered an asset of the Beneficiary when determining eligibility for ODSP.
    • The essential elements of a Henson trust are: (i) that the trustee must have absolute discretion, (ii) that the assets of the trust do not vest in the beneficiary, and (iii) that there is a gift-over following the death of the beneficiary.
    • As the beneficiary of a Henson Trust has no vested interest in the income or capital of the trust, they cannot claim or demand payments from the trust and, consequently, they are not considered to own the trust assets.
    • As with any other trust, a Henson Trust is a separate taxpayer that must file its own income tax returns.
  • Qualified Disability Trusts
    • If a Henson Trust qualifies as a QDT, the income earned and retained in the trust may be taxed at graduated tax rates. A QDT is a testamentary trust that jointly elects, together with one or more beneficiaries under the trust, in its tax return for the year to be a QDT. There are many other conditions that must be met to qualify for a QDT.
  • Discretionary Trusts
    • A discretionary trust is one where the trustee has absolute discretion over how the trust is used to help the beneficiary.
  • Spousal or common-law partner trust
    • A post-1971 spousal or common-law partner trust includes both a testamentary trust created after 1971, and an inter vivos trust created after June 17, 1971. In either case, the living beneficiary spouse or common-law partner is entitled to receive all the income that may arise during the lifetime of the spouse or common-law partner. That spouse or common-law partner is the only person who can receive, or get the use of, any income or capital of the trust during their lifetime.

Otherwise known as “Multiple Wills”, “A Corporate Will”, “A Secondary Will” or a “Private Will” - Tthe use of multiple Wills is an effective estate planning strategy available to Ontario business owners and professionals to save and, sometimes, completely avoid estate administration tax on death. If you own property in another jurisdiction, it is advisable consult a local lawyer about having a Will cover your interests in that jurisdiction.

Business succession planning is the process of determining how you will transfer your business ownership and make the transition out of the owner/manager role. Whether you no longer want to run your business or you want to sell it to fund your retirement, without a transition plan, your business may suffer. We help implement a succession plan to facilitate the profitable transition of your business.

A Power of Attorney is a legal document that gives someone else the right to make decisions on your behalf.

Yes. In Ontario there are different kinds of Power of Attorney:

  • A Continuing Power of Attorney for Property (CPOA) covers your financial affairs and allows the person you name to make decisions for you even if you become mentally incapable.
  • A non-continuing Power of Attorney for Property covers your financial affairs but can’t be used if you become mentally incapable. You might give this Power of Attorney, for example, if you need someone to look after your financial transactions while you’re away from home for an extended period of time.
  • A Power of Attorney for Personal Care (POAPC) covers your personal decisions, such as housing and health care by empowering one or more trusted persons to make medical decisions on your behalf in critical circumstances, where you may be unable to provide informed medical consent on your own behalf.
  • The person you decide to appoint as your attorney for personal care should be someone you trust to make decisions about your housing, food, health, safety, hygiene and clothing. This could be a family member or a close friend. Talk to the person and make sure that he or she is willing to take on this responsibility if needed.
  • Certain people are not allowed to be your attorney. Do not name any of the following people if they are paid (by you or someone else) to provide services to you, unless that person is also a family member:
  • your landlord
  • any person who provides care for you in the place where you live
  • your social worker, counsellor, teacher
  • your doctor, nurse, therapist, or other health care provider
  • your homemaker or attendant
  • Important legal note: unless your power of attorney says otherwise:
  • An attorney for personal care is only allowed to make medical or long-term care decisions if a medical professional or evaluator finds you mentally incapable of making the specific decision.
  • For all other types of personal care decisions, the attorney can step in if they believe you are incapable.
  • Be very careful when signing a power of attorney for property, because unless you specify otherwise, the person you name can start making decisions immediately. You may want to include a statement in your Power of Attorney that says the attorney can only make decisions if you become mentally incapable.
  • If you choose to appoint this kind of attorney, make sure the person you choose understands your wishes and agrees to this important responsibility, which includes keeping detailed records of all transactions involving your money and assets.
  • One option is to use a professional trust company to act as your attorney. The trust company charges a fee but will be professional and impartial.
  • Your Estate Planning Lawyer
  • We help you understand everything with patience and empathy. We listen so that we can provide tailor made estate planning solutions. Boutique and personalized we understand you, your family, your line of work, your priorities and your estate planning goals. We ask relevant questions to determine what you want out of your estate, then design a plan that accurately reflects your wishes, all while managing and mitigating taxes and potential family conflict. Real estate is usually a large part of an estate. We have experience dealing with Real Estate, cottages and investment properties as part of an estate plan.

A well executed estate plan takes into consideration tax, probate and insurance, as well as family dynamics. It arranges your financial affairs to avoid ambiguity, unnecessary taxes, and litigation. It acts to safeguards your assets so that they will be transfer tax-efficiently to beneficiaries.

Estate planning is complicated for those with property in multiple jurisdictions or with blended families. We have experience dealing with dual domiciles, blended families and assets in multiple locations.

Where a family member has a disability structuring a trust (Henson Trust) allows an individual with a disability to receive income from an inheritance while continuing to receive ODSP benefits. The essential elements of a Henson trust are: (i) that the trustee must have absolute discretion, (ii) that the assets of the trust do not vest in the beneficiary, and (iii) that there is a gift-over following the death of the beneficiary. Certain limitation apply as to how much inheritance they can receive while still maintaining government benefits.

We have experience with disability related estate planning issues, guardianship issues, as well as ODSP applications and appeals.

Legally you can make a Will on your own and you do not need to obtain legal advice, but because a Will and other estate planning documents are formal legal documents with specific requirements in order to be valid, it is a good idea to have your Will prepared by a lawyer. Using an online “Will kit” can set the stage for a potentially expensive and problematic estate disputes. Saving money on a Will in the short term, may add expense and complexity to your estate in the long run. The classic example given is, "would you operate on yourself?" If you do wish to proceed on your own, I refer you to the formalities laid out in the Succession Law Reform Act, R.S.O. 1990, c. S.26.

We can help you prepare your Will and Power of Attorney documents so that they will be valid under the laws of Ontario, Canada. Our estate planning process is user friendly, reliable and thorough. Allow us to take you on your estate planning journey.

We can help you prepare your Will and Power of Attorney documents so that they will be valid under the laws of Ontario, Canada.

Contact us to discuss your case and obtain personalized legal advice relevant to you.

The general information on this page is not applicable to any specific case and is intended for information purposes only. It is not a substitute for legal advice and may not be relied on as such. Readers are expressly advised to consult with a qualified lawyer for advice regarding their specific circumstances and entitlements under Ontario law.