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Mississauga Wills & Estates Law Blog

Planning for minor children in your estate plan after a divorce

As a parent, deciding who will care for your minor children, should something happen to you, may be a key motivating factor in creating your estate plan. Divorced parents have unique considerations in this regard. To prevent estate litigation, it is important to ensure wills and estate plans align with other agreements and laws that relate to child custody and support.

When a parent predeceases their minor children, there are two significant considerations related to the next of kin:

Understanding the differences between probate and trust administration

When an individual dies, probate is the court process through which the decedent's estate's execution begins. However, if the individual has chosen to use a trust as part of his or her estate plans, trust administration may also take place alongside the probate process.

It is helpful for those involved in an Ontario estate – be they executors, trustees or beneficiaries – to understand the differences between the trust administration and probate processes.

Understanding the fiduciary duties of trustees to beneficiaries

When a person passes away, the individual responsible for overseeing the estate administration process is usually an executor. However, Ontario residents who choose to put some or all of their wealth in a trust will also name trustees. This person or persons are responsible for managing this portion of the estate administration, so it is important to clearly understand their duties and responsibilities in order to select and prepare the right person for the job.

A fiduciary duty is a legal obligation an individual has to act in the best interests of another party. Under their fiduciary duties, trustees must make decisions in the best interest of the assets in the trust and the trust's beneficiaries. They must also follow all instructions laid out in a trust document. An example of this duty in action would be investments made with the assets. These investments must be conservative and minimal in risk with reasonable growth potential.

Why do some people avoid estate planning?

When a person passes away without a will or plan, it can leave loved ones and next of kin in a difficult position. A lack of clear, legally valid plans is behind many estate litigation issues in Ontario.

With so much on the line, it's fair to wonder why individuals would neglect estate planning. There are a few common reasons why individuals might not engage in this important process. 

Preparing real estate investments for estate administration

Major purchases, such as real estate, have many implications on the buyer's finances and lifestyle. These implications continue even after the owner passes away, as real estate investments must be considered as part of the estate planning and estate administration process.

Ontario investors can make it easier for their executor and beneficiaries to manage their properties by properly considering these options when preparing their estate plan:

Completing tasks and communicating in advance can help executors

As with most things in life, estate administration is far easier when advance planning and communication are involved. Largely, the burden to do this planning and have these conversations lies with the person whose estate is in question.

However, Ontario executors can support this process by asking the right questions and staying informed on the whereabouts of key documents and accounts.

Advance planning can protect a family farm from estate litigation

When it comes to making a fair and well-documented plan for the future, farmers certainly have some unique considerations. What does it mean to treat kids fairly when most wealth is in property? How can one keep farmland in the family? Advance planning on the part of Ontario farmers can prevent some of these tough questions from making their way to estate litigation after they pass on.

The first step to estate planning for farmers is taking full stock of the assets they have, as well as the ownership of each asset. Debts should also be considered. Compiling documents, including contact information for financial advisors, lawyers and business partners, will help complete the picture of what exists and who is involved.

Respond to early signs of dementia with estate and capacity plans

Over the past decades and years, research on dementia and mental capacity has continued to grow. As many aging Ontario residents begin thinking about updating their estate plans, issues of capacity and dementia frequently arise.

Setting into motion safeguards – like powers of attorney, emergency contacts and clear estate plans – can help people protect themselves when capacity becomes an issue.

Why procrastinating on estate planning can lead to litigation

Financial planning of any kind can often be met with procrastination. Estate planning in particular can be easy to put off to the future, especially for those who feel like death is a long way off. However, lack of planning and documentation is one of the main reasons Ontario families end up in estate litigation. Here are a few of the benefits of putting wishes in writing early and updating plans often.

The first benefit of estate planning is organization. For many people, the documents an executor would need to manage an estate are not in one easy-to-access place. Disorganization can lead to delays in estate administration and, in some cases, conflict between beneficiaries as they navigate the complexity of the situation.

Concerned about future capacity? Consider powers of attorney

When it comes to estate planning, many people are primarily concerned with what happens after they pass away. But what about scenarios where one is still alive but unable to manage his or her health or affairs. In cases where capacity is in question, Ontario individuals and their loved ones can benefit from power of attorney plans.

In Canada, there are two different types of power of attorney. The first type deals with personal matters, such as health decisions. The second is designated to manage financial matters. By selecting one or more individuals to manage these important matters in advance, individuals can protect themselves and their families from future conflict and turmoil.