Author: Ian Hull

21 Jul

You were left out of the will – what are your options?

Ian Hull Wills Tags: , , , 0 Comments

When parents are creating their Last Will and Testament, they often direct that assets are to be divided amongst their children. However, this is not always how it works, as the testator has the right to leave their estate to whomever they want unless they have dependents who must be financially taken care of.

Indeed, some very rich celebrities – Sting, Elton John, Mark Zuckerberg, Warren Buffet and others – reportedly have said that their children will not receive the bulk of their estates. Their reasons include giving them “some semblance of normality, some respect for money, some respect for work” and “huge sums of wealth … distorts anything they might do in creating their own path.”

You may not have multimillionaires as parents, but there is the chance that when they die, you will not be named as a beneficiary in the will. If that happens and you feel you are entitled to some portion of the estate, a legal challenge to the will can be mounted. But beware – the process will be difficult and the chances of success uncertain.

The first thing to keep in mind is that only a spouse or dependent children can contest a will that has disinherited them. You have to have a financial interest in the estate and must be able to show you were named in a prior will, or that the deceased had promised to take care of you after their passing.

If probate has not already been granted, you can file a Notice of Objection with the court registrar. If probate has been granted, then you have to bring a motion for the return of the certificate of appointment.

Before doing that, it is wise to discuss with legal counsel why you are objecting to the will. If your reasons are based on emotion rather than reason, you will likely be advised to walk away and accept the situation. The court has little tolerance for notices of objections based on frivolous claims, and you may end up having to pay the legal costs the estate incurred in defending against your claim.

You also have to consider if contesting the will makes financial sense. Does the potential gain outweigh the legal costs (not to mention the time, effort and emotional stress) the process may cause?

That being said, there are valid reasons for taking legal action. The two main ones are that there was a lack of testamentary capacity when the final Will and Testament was drawn up, or that the testator was subject to undue influence by someone. Other valid reasons for mounting these challenges include:

  • the will is unsigned or not properly witnessed
  • the testator was not aware of the full contents of their estate
  • there are ambiguous terms in the will that are open to interpretation
  • simple fraud is alleged

Any of these reasons are grounds for filing a Notice of Objection. If successful, the will may be declared invalid.

Cases that come before the court include instances where a person near the end of their life leaves their estate to a much younger person who was their caregiver or romantic partner. Family members who find themselves cut out of the inheritance have to prove that the new beneficiary exerted undue influence in the writing of the will.

That is difficult, as mental capacity is a fluid concept. A person may have the capacity to enter into a marriage, but be incapable of effectively managing their own financial affairs. As the population ages, with many people holding onto sizeable financial portfolios, we will likely see more of these predatory marriages in the future.

Challenging a will in court can be a costly, time-consuming and emotionally draining experience. Litigation can pit family members against each other, straining relationships in a time when they should be mourning. Even if they win, beneficiaries may have to wait for years as the legal process unfolds.

If you feel you have been unfairly denied an inheritance, you should speak to a wills and estates lawyer. While every case is fact-dependent, they can provide you with an informed opinion about your chances of success.

Thanks for reading, and have a great day.

Ian Hull

07 Jul

Electronic wills may be ‘inevitable’ but they have drawbacks

Ian Hull In the News, Wills Tags: , , , , , 0 Comments

A headline of a 2019 Forbes article delivered a blunt message to those of us who practice estate law: “Electronic wills are coming whether lawyers like it or not.”

The article notes that the U.S. Uniform Law Commission “recognizes the trend in online everything” and recently approved the Electronic Wills Act, which provides a framework for a valid electronic will. Under the provisions of the Act, individual states can determine the number of witnesses required for the creation of a will and whether their virtual presence is sufficient. The will has to be in text form, meaning that video and audio wills are not allowed but, once the will is signed, witnessed and notarized (if required), it will be legal.

In Canada in 2020, the Uniform Law Conference of Canada (ULCC) approved in principle amendments to its Uniform Wills Act to allow for the drafting of electronic wills. A progress report from the ULCC notes that the Electronic Transactions Act has determined that the electronic medium was “sufficiently established, reliable and usable to be accepted for all business purposes.”

The Act specifically exempts three areas: wills, powers of attorney and conveyances. The exemption for wills should be lifted, the ULCC committee recommends, noting that “we now have almost 15 years of experience of electronic commerce … much of our daily lives and arrangements are performed electronically – most of our banking, all of our healthcare records, most of our insurance and even our professional certification is all carried out electronically. In that context, what argument could be advanced that wills are so different and so exclusive that they could not be accommodated under our approach to electronic commerce.”

The committee claims that “other than ‘tradition’ it is difficult to identify any cogent argument to support the continued exception. An electronic record, once stored, is reliable, can be retrieved for future use and its ‘custody and control’ is probably more clearly tracked in electronic form than in hard copy.”

Most provinces are being cautious about embracing electronic wills, or e-wills. British Columbia has taken the lead with the establishment of Bill 21: Wills Estates and Succession Amendment Act, 2020. Bill 21 was built upon a ministerial order that permitted the electronic witnessing of wills while British Columbia was in a state of emergency due to the COVID pandemic. It expands the definition of a will to allow one done in “electronic form” to satisfy the requirement that a will must be in writing. The bill received royal assent in August, 2020.

In Ontario, Attorney General Doug Downey has been content to partially open up estate law to the electronic medium. With the passage of Bill 245, Accelerating Access to Justice Act, 2021, the virtual witnessing of wills and power of attorney documents is now allowed in Ontario on a permanent basis. Previously, it was introduced on a temporary basis during the pandemic.

Virtual witnessing means the testator and witnesses can be connected through a video call, rather than being physically together in a lawyer’s office. There are two important caveats to keep in mind – the first being that at least one of these witnesses must be a licensed lawyer or paralegal. They are there not just to be a witness, but also to confirm that the testator has the requisite capacity to sign the Last Will and Testament and that they fully appreciate the nature and contents of it.

The second caveat is that while the act of signing can be done virtually, electronic signatures are not allowed. Instead, everyone involved must print out the documents and sign them in wet ink. Once they are put together and stored safely, the will is complete and legal.

While the Forbes article quoted in the introduction may be correct about e-wills being inevitable – some U.S. states, Britain and Australia have either passed laws allowing digital wills or are considering them – there are still many reasons for people to maintain the traditional approach for the time being.

The human contact between the testator and legal counsel offered in a face-to-face meeting cannot be fully replicated in a virtual meeting. This contact builds trust and reassurance, which is vital when drafting this important document. There is also a unique set of concerns surrounding the preparation of estate planning documents that sets them apart from other legal documents that are signed digitally.

At Hull & Hull LLP, we will be monitoring the evolution of e-wills and working to accommodate any legislation the province introduces, but we are glad to see Ontario taking a cautious approach in this area.

Take care, and have a great day.

Ian Hull

23 Jun

The Real Estate Boom and a Rise in Estate Litigation – Is There a Correlation Between the Two?

Ian Hull Estate Planning Tags: , , , , 0 Comments

A recent Globe and Mail Article, published on June 4, 2021, suggests that the booming real estate market in Vancouver has come with a rise in family legal disputes.

A Vancouver estate dispute arose in November of 2020 when a testator (with modest assets at the time), who had bequeathed the remaining assets of her estate to the British Columbia Society for the Prevention of Cruelty to Animals, passed away. When the will was prepared in 2003, the testator never contemplated that the value of her estate would increase so dramatically as a result of a rise in the real estate market. The testator’s remaining assets, left to charity, amounted to more than $1.5 million on her death. It is safe to say that the testator’s heirs were not pleased with this outcome.

A poorly drafted will that fails to consider the volatile real estate market could result in unhappy heirs/beneficiaries and leave an estate vulnerable to litigation. It is also important for testators who reside in British Columbia in particular, to consider the Wills Variation section of their legislation when drafting a will. If a testator has multiple children and chooses to gift one child real property, and that real property increases in value, the remaining children could argue that they were treated unfairly and have a claim against the estate. As litigation lawyer, Josh Woods, states, “…  we are not talking about a $100,000.00 lake cabin … we are talking about properties … all of which are skyrocketing in value.”

In order to best protect against estate litigation, it would be prudent to retain an estates lawyer to prepare your will.

Thanks for reading and enjoy your day!

Ian Hull and Tori Joseph

09 Jun

What to do After a Death of a Loved One

Ian Hull General Interest Tags: , , 0 Comments

It is a scenario no one wants to contemplate, but there is a chance someone close to you could suddenly die due to an accident or natural causes. Here is some general guidance about what to do in that situation.

You can arrange a traditional funeral with the assistance of your local funeral home, where staff are experienced at guiding grieving families through the process. Alternatively, you can make all the arrangements yourself. For advice, consult the Bereavement Authority of Ontario’s Guide to Death Care in Ontario for general information when making arrangements. This informative guide covers all aspects of what happens after someone dies and is a good reference even for those who choose a traditional funeral.

One of the first choices you will have to make is how to handle the body: burial, cremation or alkaline hydrolysis (AH). With AH, a heated solution of water and potassium hydroxide or sodium hydroxide, along with pressure and agitation, reduces a body to components of liquid and bone. The resulting bone fragments are dried and reduced to a substance resembling cremated ashes.

The death must be registered by completing two documents. A Medical Certificate of Death completed by the attending doctor or a coroner outlines the cause. A Statement of Death must also be completed that details personal information about the deceased, such as family history, age at death and place of death. This is usually completed by the funeral director, in consultation with a family member.

The documents are submitted to the municipal clerk’s office, usually in the municipality where the death occurred.

You will need to get a burial permit in the municipality where you register the death. This permit is needed before funeral services can be performed, including cremation or AH.

If the death occurred outside Ontario but the burial will take place in the province, you will need a burial, transit or removal permit from the jurisdiction where the death occurred.

Another important document is a death certificate. The estate trustee will need this to settle the estate and to deal with government services. This certificate can be obtained online, with more information here.

You may already know if the person had a will, which in many cases bequests everything to the surviving spouse. If you do not know if there is a will, contact the estates division of the local Ontario court.

Private institutions – banks, insurance companies, pension funds – have to be contacted to inform them of the death, along with governmental organizations. If the deceased had been issued an accessible parking permit, you have 30 days to return that by mail to ServiceOntario.

If there is a provincial driver’s licence it must be cancelled. You can apply for a refund if there are six months or more remaining on the licence before it expires, as long as there are no outstanding fines. This can be done at any ServiceOntario centre.

Federal agencies must be contacted. That would include cancelling any benefit paid out through Old Age Security, Canada Pension Plan or Employment Insurance. Be sure to be in touch with the Canada Revenue Agency and provide them with the deceased’s social insurance number, so that any outstanding taxes can be paid or that any benefits can be transferred to a survivor. If the deceased owed money to the National Student Loans Service centre, that debt will be forgiven.

The executor of the estate is also responsible for filing an income tax form on behalf of the deceased person and contacting the Family Responsibility Office if the deceased paid child or spousal support.

For more details about the responsibility to notify federal government services click here. More information about similar responsibilities you have to the Ontario government can be found here.

The death of a loved one can be devastating, but the resources listed above should help you get through it.

Take care and have a great day.

Ian Hull

26 May

Why it is Important to Update a Will as a Family Ages

Ian Hull Estate Planning, Wills Tags: , , , 0 Comments

It’s a good idea to update your will every five years since everyone’s personal situation keeps changing. Maybe you were married, separated, had a child or moved to the other side of the country; the possibilities are endless. If you are a parent, it is especially important to have a legal professional look at your will to ensure that your children will be taken care of in the event of your death.

With the divorce rate in Canada hovering at around 40%, it is not surprising to see that blended families and second marriages are becoming more common. The 2016 Canadian Census shows that one in 10 children live in stepfamilies, an arrangement that can cause complications from an estate planning perspective if the parents don’t take the time to update their will to reflect that change.

Many stepparents treat a stepchild as one of their own, especially if the child is young when their biological parent and stepparent got together. But if one or both of the parents were to die, the stepchild may be denied the inheritance you intended to leave them if you didn’t take the steps necessary.

Many people will change homes in their lifetime, in pursuit of job opportunities or for personal reasons. If you cross a provincial border, the rules governing estate succession may be different than in the province where you drew up your will. If you move to another country, you definitely need to make changes to your estate planning to reflect that change.

If you have children, you should designate someone to act as their guardian in the event of your death. If your child was quite young when you drew up your will, it might be that guardian is not the person you want in the position five or 10 years later.

The same situation applies to the appointment of an executor. Perhaps you have grown apart from the person you first appointed and you wish to have another friend or family member in that important role. If your executor has moved to another country, they will have to go through additional steps and expenses to fulfill their responsibilities, which is a good reason to re-evaluate who is in this role.

If your marriage ends in a divorce, that does not invalidate your will, though the provisions that refer to your spouse are revoked. This means they can no longer be your executor, trustee or guardian, and any gifts you left to them will go to someone else. A divorce is also an appropriate opportunity to reconsider beneficiary designations on any insurance products, RRSPs, TFSAs and financial products.

Starting in 2022, marriages will no longer invalidate a signed will, thanks to the passage of Bill 245, the Accelerating Access to Justice Act. It repealed the provision in the Succession Law Reform Act that automatically revoked a will upon marriage. It also eliminates property rights on death when spouses have separated but not divorced and is applicable whether the deceased dies with or without a will.

If you enter into a common-law relationship, keep in mind your partner is not recognized in Ontario for the purposes of succession unless you have amended your will to provide for them. A surviving common-law spouse has no right to the estate you leave behind, though they may make a claim for dependant support.

If a person you have designated as a beneficiary dies before you do, you should consider amending the will to remove any reference to them and to reallocate your gifts. If not, the gift will be transferred to the residue of the estate.

Life is constantly changing and your will needs to reflect those altered circumstances.

Thanks for reading and have a great day,

Ian Hull

12 May

Shocking Findings Revealed by the Long-Term Care Covid-19 Commission’s Report

Ian Hull In the News Tags: , , , 0 Comments

A pandemic is an inopportune time to create a nuanced, well-thought-out and thorough response plan.”Long-Term Care Covid-19 Commission

On May 19, 2020, in an effort to investigate the deplorable conditions witnessed in many Long-Term Care homes across the province, Ontario launched the Long-Term Care Covid-19 Commission (the “Commission”). On Friday, April 30, 2021, the Commission submitted its final report (the “Report”) to the Minister of Long-Term Care which only confirmed what the province already knew – vulnerable elders were subject to neglect and abuse long before Covid-19 came knocking on Canada’s door. CanAge, a seniors’ advocacy group, described the Commission’s findings as “both a call to action and horror.”

The Report painstakingly depicts a picture of the nightmarish conditions experienced by the residents of certain Long-Term Care Homes in Ontario. The Commission compared the mental health effects suffered by some residents to those faced by prisoners in solitary confinement. This abandonment of one of our most at risk communities is disgraceful.

The Commission pointed to the extreme lack of coordination between government decision-makers as a key finding in its study. Perhaps what was most alarming, was the finding that dozens of residents in homes hit hard by the virus died from dehydration and neglect rather than Covid-19. Though Covid-19 shed light on the inhumane conditions of some homes, this is not a novel problem. The government’s delay in responding to this crisis proved to be deadly in more ways than one.

The Report recommended that the government reconsider the management of Long-Term Care homes with a renewed focus on “quality care.” Of particular note, the Commission cautioned against Long-Term Care homes owned by investors as “care should be the sole focus of the entities responsible [for these homes] …” The Report also criticized the government’s “lack of urgency” to the situation.

If lessons were not learned from this tragedy, then the deaths of so many will have been in vain. Let’s hope the government responds to this Report with immediate action.

Thanks for reading and have a wonderful day!

Ian Hull and Tori Joseph

28 Apr

An Estate Trustee/Executor Role Comes With Some Liability

Ian Hull Estate Planning Tags: , , , , , , 0 Comments

If you are asked to be someone’s estate trustee/executor, you may wonder what liability you are assuming. That is on top of the regular workload, as settling the testator’s financial affairs and distributing the remaining assets to their beneficiaries usually takes a year, involving visits to banks, lawyers and other relevant parties. Much can happen in that time, and beneficiaries may be pressuring you to quickly pass along their share of the estate.

Here are some important points to keep in mind with personal liability.

Many Last Wills and Testaments contain phrasing meant to protect loved ones as they carry out their executor duties, usually along the lines of: “No trustee acting in good faith shall be held liable for any loss, except for loss caused by his or her own dishonesty, gross negligence or a wilful breach of trust.”

That type of clause is important, but there is still some liability that comes with the position.

First, let’s make it clear that an executor does not incur personal liability for the debts and liabilities of the deceased. However, it is the executor’s duty to ensure that financial obligations are paid from the estate before any money goes to beneficiaries.

The potential liability here is particularly significant with respect to taxes. Most estates will have taxes owing, so it is the executor’s duty to ensure that all outstanding tax matters are resolved. Section 159 of the Income Tax Act requires executors to obtain a clearance certificate. This document confirms that the taxes of the deceased have been paid in full. If the executor does not obtain this certificate and the funds from the estate have already been distributed, they will be personally liable for taxes owed.

There is always a chance that an executor could discover the testator was not meeting their tax obligations to the Canada Revenue Agency (CRA). There are a number of reasons this may arise, ranging from simple carelessness to deliberate tax evasion. No matter the situation, the executor is responsible for rectifying that shortcoming using the estate’s funds, before money is given out to beneficiaries.

The CRA has created a Voluntary Disclosure Program that allows executors to come forward and voluntarily correct any errors or omissions without being subject to penalties or prosecution.

Personal liability for executors also arises if they spend money on professionals to help with the administration of the estate. That could include such people as lawyers, accountants, investment advisors, real estate agents, or art appraisers. Estates can be complex, so it is well within the scope of diligent executors to seek professional guidance. Accordingly, the cost for these services will be borne by the estate, not by the executor.

Detailed records must be kept of any money spent, as executors have a duty to account to the beneficiaries. These records must show all expenses paid by the estate and what money the estate received, from insurance benefits, banks or other sources.

In most cases, beneficiaries of an estate will approve, or consent to, the accounts as kept by the estate trustee. But if they feel finances were not properly managed, they can ask for court approval of the records, known as a “passing of accounts.”

Since executors have a duty to maximize the recovery, and value, of estate assets, they are personally liable for any losses they cause. That could include being reckless with the assets, which causes a loss in monetary value. Examples of this would be if an estate has to pay penalties on a tax return that the executor filed extremely late for no good reason, or if a home was sold for much less than market value.

The good news is that if an executor performs their duty diligently and honestly, any financial liability they assume will be paid by the estate.

Be safe, and have a great day.

Ian Hull

14 Apr

How to Appoint a Guardian for Your Children

Ian Hull Estate Planning Tags: , , 0 Comments

When parents consider who should be the guardian of their minor-age children in the event they both were to die, they are probably thinking in terms of who will assume parenting responsibilities. In Ontario, however, there is an important distinction between the custodial guardian and the guardian of property, the latter being the person who will make financial decisions for those children until they reach the age of majority. One person can fulfill both roles or parents can break the responsibilities apart and assign guardians for each.

Let’s explore the second form of guardianship first.

In Ontario, subsection 47 (2) of the Children’s Law Reform Act describes a guardian of the property as someone “responsible for the care and management of the property of the child.”

Their duties include making trustee investments and investing the child’s money as required by the management plan approved by the court. If there is a large amount of money involved, the guardian may be required to pass the accounts before the court at fixed intervals, usually from one to five years.

Detailed records, or accounts, must be kept of all transactions carried out on behalf of the children.

Guardians of property may be paid for their work, following the fee scale set out in Ontario Regulation 159/00. It states they are entitled to three per cent on capital and income receipts, three per cent on capital and income disbursements and three–fifths of one per cent on the annual average value of the assets as a care and management fee.

The court can review the accounts and adjust the amount of compensation given, and, if required, demand that some or all of these funds be repaid.

With the financial responsibilities involved in being a guardian of property, it is easy to see why parents should select someone comfortable with handling money for this role.

When selecting a custodial guardian to assume day-to-day parenting duties, most people look to family members. That often works well, especially if the person lives close by and has children of their own. But don’t be afraid to look beyond your circle of relatives. In some circumstances, a family friend might be the better choice. Just as there are no perfect parents, there are no perfect guardians, but your children will have to live with the choice you have made in the event of your untimely death.

There are a number of factors to consider with any guardian choice, such as geography. School-age children may not appreciate being uprooted from friends and schoolmates if the custodial parent lives in another community or province.

The age and health of the custodial guardian are important as well, as you want someone who has the energy to take on the myriad of tasks involved in child-rearing. For that reason, someone who is nearing retirement might not be a wise choice as a custodial guardian.

Parents also have to think about the attitudes and values they are trying to instill in their children. You want to find a custodial guardian who lives by similar standards as yours, to ensure your children are brought up in a manner in which you approve.

Finances should be a factor in your decision-making. Even if a will provides funding for the children’s needs, the custodial guardian’s expenses will go up, so you won’t want to select someone who is already financially strained.

For both guardian roles, you will want to be sure to discuss the issue thoroughly with the people in question before appointing them in your will. It is a statistical long-shot that their services will be required, but make sure they are comfortable taking on those duties if they are ever required to fulfill those roles.

One final point: review your guardianship appointments on a regular basis. Everyone’s personal circumstances change, and the person who agreed to be guardian 10 years ago may be unfit or unwilling to assume that role now.

Stay safe – and have a great day,

Ian Hull

31 Mar

If You Have Children, What Should be Included in a Will?

Ian Hull Estate Planning Tags: , , , 0 Comments

A person’s Last Will and Testament allows them to not only determine how their estate is distributed upon their death, but can also set out their expectations on how to care for their minor-aged children. To ensure that the needs of the child can be met, here are some of the elements that should be part of this important document.

One key issue is to decide who to appoint as guardian – the person who will assume the responsibility of raising the children upon the death of their parents. A person entitled to custody of a child may appoint one or more persons to fill that role after the death of the parent, as per section 61 of the Children’s Law Reform Act. It’s also possible to choose a different guardian for each child if that works in a particular situation.

Keep in mind that such an appointment is typically only in force for 90 days, during which time the custodian must bring a court application seeking permanent status. The testator’s appointment can be overturned by a judge, however, especially if circumstances have changed between the writing of the will and the guardianship appointment being made. Perhaps your appointed guardian is having personal struggles of their own and is no longer fit to care for your children. In most cases, though, the court will typically respect the choice of the testator and assign great weight to their final wishes.

When it comes to minor-age children, an equally important designation is the appointment of a trustee. This can be the same person as the guardian, though it doesn’t have to be. A trustee makes decisions about how your assets are managed and when funds are allocated to your children. For example, parents may decide it would not be in their children’s best interests to receive a large inheritance at the age of 18. Those funds can be controlled by the trustee until the children reach a higher level of maturity.

When parents prepare their wills, they do not know what the future needs of their children will be. Maybe a child will be injured and will require therapy not covered by provincial health plans, for example, or they could develop a keen interest in music or some other pursuit requiring expensive equipment.

These needs could be paid for by the trust if the trustee is convinced they are in the best interests of the child. The trustee can also release funds for the general maintenance of the child, with all withdrawals recorded for later reference.

Specialized trusts can be established for a number of different scenarios. For example, the Henson Trust is used in estate planning where there is a disabled beneficiary who is entitled to receive support payments from the Ontario Disability Support Program (ODSP).

Under the Ontario Disability Support Program Act, if a recipient of ODSP has assets or receives income over a prescribed limit, they will be ineligible to receive support payments. One way to address this issue is through the establishment of the Henson Trust.

Those in a second marriage or any sort of blended family definitely need a will. There needs to be direction on who inherits what. Court challenges are sure to arise if the direction is unclear or if it is seen as patently unfair to one party.

That is reinforced by a TD Wealth survey that found that family conflict was identified as the leading threat to estate planning. The survey cited the designation of beneficiaries (30 percent) as the most common cause of conflict, with other leading factors including not communicating the plan with family members (25 percent) and working with blended families (21 percent).

Some parents may want to include information about their parenting philosophy or provide advice about how to handle their children in the will. A Last Will and Testament is not the place for that. This is a legal document that contains specific instructions about the distribution of your estate. After your will is probated, it becomes a public document that anybody can read. However, instructions or encouragement about parenting can be included in a letter or other separate document that accompanies the will.

A will is the last gift you will give your children, so you’ll want to work with a lawyer to make sure it leaves the legacy you intended.

Thanks for reading ­– and be safe.

Ian Hull

17 Mar

New Wills Needed With Later-in-Life Marriages

Ian Hull Estate Planning Tags: , , , , , , , 0 Comments

There are some important milestones in life when it is imperative for a person to update their will. A later-in-life second marriage certainly is one of them.

If your first marriage ended in divorce, the provisions in your will that refer to your spouse are automatically revoked, as provided by s. 17(2) of the Succession Law Reform Act. Your former spouse will no longer be your executor or trustee or even a beneficiary of your estate unless there is an explicit reference in your will to this.

Keep in mind the same is not true for beneficiary designations relating to assets, such as RRSPs, RRIFs, life insurance policies and pensions. Those will still flow to the individual named in those plans unless you take steps to name new beneficiaries.

If you are separated but not divorced, your will remains entirely valid upon death, in the absence of a separation agreement delineating a married spouse’s entitlement. Therefore, any bequests previously made by a spouse to a surviving spouse remain valid. This situation is not ideal either, since you want to avoid having assets flowing to a person when you are no longer involved with them.

A complicating factor with later-in-life marriages is that they can bring together children from previous relationships. From an estate-planning perspective, this can create complexities.

Perhaps the children from a first relationship resent a step-parent and feel that their step-siblings are now unfairly in line for the estate. Conversely, a step-parent may welcome a spouse’s child as their own or the couple may have a child of their own or adopt one. Where does that leave the other children from previous marriages from an estate distribution perspective?

Aside from the financial implications of having your family members squabble over your estate, there is an emotional component to consider. Children may feel slighted if they do not inherit what they consider to be their fair portion of the estate, even if the intention is that the surviving spouse, in turn, leaves assets to the children upon their death. This approach leaves room for uncertainty, which is the last thing you want to create when drawing up an estate plan.

A common practice for estate planning when it comes to second marriages is to provide a “life estate” to the surviving spouse and a “gift over” to the testator’s children. If the father were to die in this scenario, the matrimonial home and all of his money would be held in trust for his widow for life. She could then make use of these assets but would not have the right to gift them to beneficiaries of her own estate, as the assets would be given to his children upon her death.

Almost any blended-family situation creates tension that can explode into estate litigation if the will is not carefully drafted to address the family’s circumstances. It is important to be clear about your wishes with the lawyer revising your estate plan, taking into account how everyone in your blended family will react to the arrangement.

To sum up, it is crucial to seek the advice of legal counsel about wills before entering into a late-life marriage. Those that do will discover estate planning will be much different than with a first marriage when they had fewer assets and beneficiaries.

Thanks for reading … have a great day,

Ian Hull

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