October 2015 - Garton & Harris

What happens if you die without a will in place?

October 26, 2015/in Wills /by gartonandharris

When a person passes away, he or she leaves behind an estate. Some people don’t have a will put in place because they don’t think they have assets worthy of this action. Nothing could be further from the truth. Your children would very much appreciate remembering you as they use the family china or cover up with the quilt that you left them. What happens in either situation? What happens if you die with a will in place and what happens if you die without one?

If you have a will in place, your wishes are easy to translate. You have left a list of sorts that your relatives can look to for guidance. In a few cases, the will may be challenged if the law says that your will isn’t doing what it is supposed to do. For example, all your money and property must first go to your surviving spouse. If the property is jointly owned, it will naturally transfer to your partner. Also, if you remarried after your will was written, it may be contested by the newer spouse.

If you die “intestate” or without a will in place, Ontario’s Succession Law Reform Act will help your heirs with the distribution of your assets. The act says that if there is a person who is financially dependent on you, the first $200,000 will be distributed to this person. The children and grandchildren will equally share the rest of the property and assets left. If you have no heirs, your parents will inherit the remaining belongings. Without parents, your assets will be distributed to your siblings.

Knowing what will happen if you don’t have a will in place is important information, and hopefully, it will spur you on to getting with your lawyer and putting one in place right away.

Source: Ministry of the Attorney General, “Inheriting property,” accessed Oct. 26, 2015

A will needs to reflect blended families

October 20, 2015/in Wills /by gartonandharris

Nowadays, second marriages are not uncommon. This brings us blended families and changes may occur in your estate plan because of this. Generally, a person who is writing a will when a second or third marriage takes place will do his or her best to create a balanced picture. This person tries to appease his or her new spouse while continuing to protect and advance his or her kids from a prior marriage.

The dynamics of the family will be an important aspect of any estate plan that is in place or being revised. While you are alive, the glue that holds the family together may be you. When you pass away, there could be contention and strife. How will you respond to this revelation?

Putting an effective estate plan in place now can save so much infighting later. Being honest with your lawyer about the relationship with your current spouse and the kids from a previous marriage is key. One idea that arises is to have life insurance that is paid to the children, while the spouse retains the assets of the estate in a spousal trust.

A spousal trust is a tool that lets the surviving spouse use assets that you leave behind during his or her life, and, upon his or her death, the assets belong to your children. There are some tax benefits to having your estate set up this way, so discussing it with a lawyer can be a good idea.

There is a “rollover treatment” that allows assets to be transferred from the estate to the spousal trust at the same value they were at when the testator acquired them. Changes to Canada’s Income Tax Act are coming in January 2016 and will make it possible for the surviving spouse to be responsible for any capital gains taxes instead of the estate.

Source: Huffington Post Canada, “If You’re in a Second Marriage, You May Need to Revisit Estate Planning,” Suzana Popovic-Montag and Ian M. Hull, accessed Oct. 20, 2015

Having an estate plan can bring peace of mind

October 13, 2015/in Estate Administration & Probate /by gartonandharris

Have you contemplated putting an estate plan in place, only to stop because the task seems too daunting and difficult on your own? The law firm of Garton & Harris understands this, and with our extensive knowledge of the subject, we know how to organize your documents, do research on your situation and give you answers and options to put your estate plan in place. We know how to help you plan for when you are incapacitated or no longer here.

We not only help you put an estate plan in place, we can help you with the administration as well. This aspect helps the person who is the appointed power of attorney of your estate. Since we helped you plan your estate, we can help administer the estate as well. The person in charge needs time to grieve your loss and may not be able to handle seeing the plan through to the end. We can assist in a matter-of-fact manner.

We know that planning is important and can help you by asking questions and putting a legal document in place that outlines who gets what. We know that you may believe that because your estate is small, you don’t need a plan. That everything will work out on its own. This isn’t necessarily true. If one of your children wants the china and another wants Grandma’s quilt, you need to realize that these things mean more than just money to them. It is a piece of their past and keeps your memory alive.

Part of an estate plan is a will. This is where you tell each person who is an heir what he or she can expect from you in terms of assets and property. Do you want a charity to also get something from your estate? It needs to be in the will. If your children are in the will also, you need to be specific as to who is receiving what. This will allow them time to understand that, while you are no longer here, you cared enough to put this plan in place.

Why is a will important?

October 4, 2015/in Wills /by gartonandharris

What happens when you are no longer here? What documentation do you have in place that will guide your executor, trustee or the person who has power of attorney over your estate to make sure that your wishes are handled accordingly? Many times, it comes down to the fact that your executor doesn’t even know where the key to your lockbox is, much less your account numbers or even what accounts you have open.

What usually happens is that you may die with a will; however, the person that you have entrusted with the right to execute your wishes and desires has no idea where you keep your account information. Where is the key to your lockbox at the bank that holds your important information? On the other hand, is all your information held in your lockbox or do you need to tell your attorney (your executor) where that key is? Does he or she know what accounts are outstanding and need to be paid? These and other questions will definitely come up when you are no longer here.

Many times, an executor or attorney will represent you when you are no longer able to. Are there any areas of your estate that you have strong feelings about? Have you talked to your attorney to ensure that he or she knows your desires?

You may not realize this, but the person who has power of attorney over your estate will do his or her best to ensure that what you want done is done. Having a will and estate plan in place is important. Your relatives will be able to turn to your lawyer and/or your trustee will be able to guide them through this process.

Source: Financial Times, “The best estate plan Is worthless if it can’t be found,” Michael Pace, Oct. 03, 2015

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