Probate, Wills, Trusts & Powers of Attorney

Probate is the legal process in Ontario that confirms a Will's validity and grants legal authority to the appointed estate trustee to manage the deceased's estate. Probate is not always required in order to administer an estate. The type of assets in the estate usually determine whether an estate should be probated. At our firm, we prepare and file a probate application with the requisite court. 

 

The application may differ depending on whether the application is done with or without a Will. When the probate is granted, the applicant receives a certificate appointing him or her as the executor of the estate. Depending on the estate's value, the type of certificate may differ between the following:

• Certificate of Appointment of Estate Trustee (CAET): Required for estates valued over $150,000 (or if the estate includes real estate or assets held by financial institutions).

• Small Estate Certificate: An option for estates valued at $150,000 or less, offering a simpler and faster process.

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Based on the value of the estate, an Estate Administration Tax may be levied. In some cases a bon may be required. We can help with the estate tax calculation and explain how to meet the tax liability, if any, as well as navigate other requirements. 

A Will is a testamentary document. It can help you plan ahead to ensure that your wishes are carried out with minimal costs, your assets are protected, and your loved ones are cared for in the future. Benefits of having a Will include the following:

• Estate Plan: A created estate plan reflected in your Will, which considers your family situation, assets (property, investments, etc.), and desired distribution plan for your belongings after your demise.

• Specific Wishes: A Will can include specific wishes you have regarding guardianship for minor children or care for pets.

• Structure: Structuring your Will involves looking ​at options to potentially minimize taxes or achieve specific goals within your Will. Here are some examples:

  • Tax Minimization Strategies: Suggesting techniques such as utilizing trusts or specific asset distribution methods to potentially reduce tax burdens on your estate and beneficiaries.

  • Business Owners: business owners may need special Wills also known as Primary and Secondary Wills.

  • Charitable Giving Integration: Integrating charitable giving into your Will, allowing you to donate assets to charities.

  • Blended Family Considerations: For families with complex dynamics (e.g., stepchildren), structuring the Will to ensure a clear and fair distribution plan.

 

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Trusts are legal arrangements where you transfer ownership of assets (money, property, investments) to a trustee who manages them for the benefit of beneficiaries you designate. Benefits of having a trust include the following:

• Asset Protection: Shielding assets from potential creditors or future long-term care costs.

• Tax Minimization: Potentially reducing tax burdens on your estate and beneficiaries.

• Controlled Distribution: Distributing assets to beneficiaries gradually or under specific conditions.

• Management for Beneficiaries: Ensuring responsible management of assets for beneficiaries who may be young, inexperienced, or have special needs.

 

Different types of trust exist that are subdivided between the following categories:

• Testamentary Trust: Takes effect upon your death, often used for managing inheritance for minor children or beneficiaries who may not be financially responsible yet.

• Living Trust: Created during your lifetime, it can be revocable (allowing you to make changes) or irrevocable (offering certain tax benefits). Assets in a living trust typically avoid probate, a court process for settling an estate.

• Special Needs Trust: Designed to benefit someone with a disability without jeopardizing their eligibility for government assistance programs.

 

Each of the different types of trusts may have different tax implications and need to be discussed with a lawyer. Our team can explain these implications and help you structure the trust.

A power of attorney (POA) is a legal document that grants another person (your attorney-in-fact) the authority to make decisions on your behalf regarding your finances, property, or personal care if you become incapacitated. We can help with the drafting and structuring services to ensure your POA is tailored to your needs and legally enforceable.

 

A POA can help in the following situations:

• Age-related Incapacity: Planning for potential future situations where you may be unable to manage your affairs due to age or illness.

• Accident or Injury: Ensuring someone you trust can manage your finances or make healthcare decisions if you're in an accident or become seriously ill.

• Travel or Temporary Absence: Granting temporary decision-making authority to someone if you'll be travelling or unavailable for a period.

 

Choosing the Right POA Type:

• There are different types of POAs. Each with varying scopes of authority. 

  • General Power of Attorney: Grants broad authority to your attorney to manage your finances, property, and legal matters.

  • Limited Power of Attorney: Limits the attorney's authority to specific areas, such as managing a particular bank account or making healthcare decisions.

  • Springing Power of Attorney: The POA only takes effect upon the occurrence of a specific event, such as your incapacitation.