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Mississauga Wills & Estates Law Blog

Estate administration can take a nasty turn when families fight

When a man or woman writes a will, it is no doubt their hope to leave enriching gifts to those whom they held most dear in life. Unfortunately, once a person has passed on, he or she has no control over what his or her relatives do. Estate administration can become lengthy and unpleasant when descendants squabble over the estate, as one celebrity family is proving right now.

Ontario native Alan Thicke passed away in Dec. 2016 and left behind a sizable estate divided between his three sons and his third wife. The three boys each received an equal share of Thicke's ranch and are to split 75 percent of his personal items and 60 percent of what remains of the estate. To his widow, he bequeathed the furnishings at the ranch, the balance of his personal effects and estate, a $500,000 life insurance policy and his various death benefits. She is also allowed to continue to live at the ranch, provided she pays to maintain the property.

Keep wills up to date to reflect family changes

Any man or woman who plans for the future of his or her family after they are gone clearly cares about the people in their life. Wills, in particular, are a great way to ensure the distribution of estates and the enrichment of descendants. However, failing to keep one's will up to date could have unintended and regrettable consequences for a person's loved ones.

An Ontario woman passed away recently at the age of 94. In her will, she left all of her belongings and assets to her husband. However, since he predeceased her, the estate passed to her two sons, as specified in the will. Having lived to a ripe old age, she also outlived one of her two sons. Her will also covered that possibility, stipulating the deceased son's share go to his children.

What are the grounds for contesting wills in Ontario?

When a family member or a loved one passes away, it is a sad time for everyone connected to that individual. Sometimes, there may be solace found when the executor administers the will; a kindly bequest may be a welcome reminder of the relationship there once was. Sometimes, however, the bequest is disappointing, or even non-existent. Under certain circumstances, it may be possible for a disappointed heir or other party to contest the will. For anyone considering such actions, it may be helpful to have a brief look at the valid reasons for contesting wills in Ontario.

If one is expecting a certain quality of bequest, anything less may be disappointing. That does not mean one can challenge a will simply based on unmet expectations, however. It is necessary to show that the will is invalid for some reason.

How to become a guardian of property in Ontario

In an ideal world, every person will enjoy good health and a sound mind until they pass away. Unfortunately, that doesn't happen for some people. Should a person no longer be able to make decisions about his or her own finances due to mental incapacity, it may be necessary to appoint a guardian to manage his or her affairs. Here is a brief summary of guardianship of property in Ontario.

If a person becomes mentally incapable of making sound financial decisions, and he or she did not grant power of attorney to anyone while still mentally able, appointing a guardian is a logical next step. A guardian can see to the protection of that person's assets, and take care of his or her financial obligations, such as bill payments, making purchases and managing investments. The guardian cannot change a will, or make personal decisions on behalf of the incapacitated individual, however.

Estate planning is also about choosing the right people

When many of today's adults were children, choosing the right people to be by their sides was just as important as it is now. Whether making friends, or picking players for a team, kids learn early that it pays dividends to choose the best people for the job. The same holds true when an adult is working on his or her estate planning in Ontario. Whom one chooses to be the executor of the estate can have a major effect on the administration process.

Advisors at RBC Insurance, recognizing the vital role an executor plays, put together a list of qualifications the ideal candidate should possess. First and foremost, they recommend choosing someone who can be trusted completely. Someone who is going to act in the best interests of the estate should fill the role. For that reason, many people choose their spouse, an adult child or a very close friend.

Without a 'Titanic Clause' a person's estate planning could sink

No person can predict the future, but that does not mean one shouldn't make plans for the inevitable. At some point, everyone passes away, and it is important to prepare for the distribution of one's assets when the time comes. Being prepared for multiple contingencies can help to ensure that all of a person's estate planning wasn't for nothing. 

For most men and women, the obvious thing to do with their assets is to leave them to their spouse and children. However, what would become of those assets should the principal beneficiaries and the testator all perish at the same time? In Ontario, if both spouses die together, neither party is deemed to have outlived the other and all the assets pass to the remaining heirs. It is not difficult to imagine the confusion and frustration that might ensue.

Choosing one's executor is a key part of estate planning

It is one of life's great ironies that one of the most important and potentially complicated events an individual will be associated with occurs after he or she has passed away. The dispersal of personal effects and assets after a person's death may be a simple wrapping up of affairs, but it could also be a time for giving generous gifts to loved ones, or securing a legacy for the future. Unfortunately, the donor cannot be there to oversee the process. For that reason, choosing an executor is one of the most important aspects of estate planning in Ontario.

One of the top qualities to look for in a person one might choose as an executor is trustworthiness. This person will have a great responsibility to look after on the testator's behalf; it is important to believe the chosen individual has the ethics to do the job according to one's wishes. If this person also has some experience with tax, investments and other financial matters, it would be a significant asset.

Include the kids while estate planning later in life

Most children probably believe that mom and dad will always be there. As people age, however, they come to understand and accept that all things come to an end in time. Part of being an adult in Ontario should include preparing for the day when one is no longer around. Some financial experts believe children and other heirs should be included in the estate planning process.

A survey conducted by BMO Financial Group shows that 32 percent of Canadians intend to pass their assets on to their spouse and children. However, 40 percent said they had not discussed their intentions with their kids regarding this matter. A director at BMO recommends talking to one's family to ensure they are on board with the plans being made. This could save a lot of trouble when it comes time to execute one's will.

Power of attorney is an estate planning tool that can be misused

There are many tools available to those seeking to have their affairs in order in advance of their demise. Granting power of attorney over one's finances is an excellent choice for many older people to consider while attending to their estate planning. It is, however, a power subject to abuse, and careful consideration is prudent before granting it to someone. A person in northern Ontario is no doubt regretting their choice after his or her accounts were used for the personal benefit of another.

Ontario Provincial Police in Kapuskasing were alerted to potentially fraudulent activity on Feb. 15, 2016. The investigation took a long time, but police were able to determine that two suspects had made purchases locally, withdrawn money and written cheques from the account of an elderly citizen. The accused had power of attorney over the victim's finances.

Estate planning update: Change may be coming to power of attorney

Periodically, the laws of the land come under review to ascertain whether they still meet the needs of the population. This includes many areas, including criminal law, family law and estate law. The Law Commission of Ontario has recently issued a report detailing recommended changes to systems in place for substitute decision-making that could have an impact on estate planning.

According to the Executive Director of the Commission, the systems pertaining to powers of attorney have remained largely unchanged since the late 1980s. He believes there are opportunities to streamline the system and bring it up-to-date. Toward that end, the report details 58 recommended changes.