Estate planning encompasses a much broader spectrum of issues than most young adults typically envision. Simplifying this broad area of practice, many 20 and 30 something’s presume that the entirety of estate planning involves the drafting of a will – something which can be postponed until they have reached a later stage in life; have more assets; or, perhaps, even children of their own.
Estate planning in early adulthood involves acknowledging not only your own mortality, but also realizing that even without a plethora of assets, one still needs protection.
Even those as young as college freshman would find it prudent to consider utilizing the following legal instruments, keeping in mind that this is by no means an exhaustive list:
1) Living Wills and Powers of Attorney for Personal Care: whilst none of us wish to acknowledge the possibility, it is vital to plan for the worst case scenario. A living will and Power of Attorney provide for one’s wishes in the event of permanent loss of consciousness, entering into a vegetative state, or any other instance where one is unable to make medical decisions of their own volition. Perhaps even more importantly, these documents act as a vestige of an individual’s final wishes regarding medical treatment, and thereby negate the need for family members to have to make life-altering decisions on behalf of a loved one. Having the foresight to recognize that family members may not agree on such a decision is vital.
2) Marriage Contracts: as one prepares to enter into a lifelong commitment, even with few assets of their own to speak of, it remains important to consider family assets. Family businesses and other significant assets one might inherit in the future, or simply entering into a marriage with a partner who has accumulated a large amount of debt, should prompt the need for a contract outlining how such assets, and liabilities, will be shared in the event of marriage breakdown.
3) Life Insurance: Somewhat counterintuitively, the very fact that a young adult may not have many assets is precisely the reason to ensure that if they suffer an untimely death, their spouse or minor children have some form of income to fall back on. A simple life insurance policy can provide for paying off loans and act as a substitute for lost future income. This is especially important given that young adults are often highly burdened with debt and base family planning on higher future income streams.
Perhaps most importantly, it must be remembered that estate planning is not a do-it-yourself process. The complexity involved in these legal documents, and the long-lasting implications of a plan going awry, necessitate the involvement of an established practitioner to guide one through the multitude of decisions that may, or may not, have been considered, in order to properly plan for the future.
Anticipating future hypothetical circumstances requires more than simple precaution and forethought. Estate practitioners have been exposed to a host of multifaceted scenarios and as a result are able to provide insight and raise considerations which might otherwise be overlooked by someone attempting to canvass the vast and intricate world of estate planning on their own.
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The most common regrets that patients express on their deathbeds, according to a nurse who worked in palliative care, are
1. I wish I’d had the courage to live a life true to myself, not the life others expected of me.
2. I wish I hadn’t worked so hard.
3. I wish I’d had the courage to express my feelings.
4. I wish I had stayed in touch with my friends.
5. I wish that I had let myself be happier.
Why would anyone regret not spending more time playing video games?
In a “Ted Talks” exclusive, Jane McGonigal, a video game designer, explains how video games can lessen some of the top regrets expressed by dying patients.
1. I wish I’d had the courage to live a life true to myself, not the life others expected of me. Ms. McGonigal argues that for many people, video games give them the chance to spend more time having fun with their family. She states that a study finds that parents who spend time playing video games with their children have stronger real-time relationships with them.
2. I wish I hadn’t worked so hard. A video game can provide people with a break from their everyday life.
3. I wish I’d had the courage to express my feelings. Ms. McGonigal explains how avatars are a way for us to express our most idealized, true selves. She points out that Stanford University has been studying how playing a video game with an avatar that reflects our idealized selves can change how we see ourselves in the real world, making us feel more courageous, ambitious, and committed to our goals.
4. I wish I had stayed in touch with my friends. Many people use online social games to keep in daily touch with their real-life friends.
5. I wish that I had let myself be happier. Ms. McGonigal states that according to a study by East Carolina University, online games can outperform pharmaceutical treatments for clinical anxiety and depression. Playing for a minimum of 30 minutes a day could therefore make people feel happier.
To listen to this interesting perspective on the potential value of playing video games to people’s quality of life, check out Ms. McGonigal’s talk at this link.
On death, many people hope to continue to provide not only for their partner and children, but also for one or more charities or non-profit organizations that have touched their lives.
Such a philanthropic goal can be both admirable and complex. From a legal standpoint, the approach taken must be honed and, to avoid hostility from relatives who would otherwise inherit a larger share of an estate, this intention must be clearly expressed.
In making a testamentary bequest to a charity, and in order to avoid litigation arising out of confusion, the names of the intended recipients should be clearly stated. Simply stating a general beneficiary such as ”the cancer society” is too broad, and could lead to different interpretations depending upon the life circumstances of the donor and the wording of the will.
It is also important to ensure that, if the bequest is to be used by a charity for a specific purpose, the purpose or purposes must be clearly delineated. If this is not done, the charity specified may simply use the funds provided for whatever purpose it sees fit.
Another possibility is the creation of a private foundation, which can engage in philanthropic activities on a perpetual basis in the name of the donor, by distributing the income derived from a large asset base provided to it in a will. Such an entity can allow a testator to have the estate offer ongoing support to multiple causes as an alternative to a one time disbursement of assets. A foundation can also be established while a donor is still alive and can continue to exist beyond death if it is provided for in the donor’s will. Additional benefits of establishing a foundation include tax advantages, ongoing family engagement and a legacy which can potentially exist in perpetuity. Perhaps the best known modern example of such a charitable foundation is the Bill & Melinda Gates Foundation.
There are, of course, many more considerations involved in charitable giving. When estate planning involves philanthropic goals, it is wise to contact an experienced estates practitioner in order to prepare the right document to ensure that admirable final wishes come to fruition.
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69% of Canadians who have a will also have Powers of Attorney prepared in the event that they become incapacitated, according to a BMO Harris Private Banking Study. 90% of those who have a Power of Attorney have appointed someone to manage their property, while 87% have appointed someone to manage their personal care.
Sara Plant, Vice President and National Director of BMO Harris Private Banking, notes that there are many factors you should consider when deciding who to appoint as your Attorney
2. Family dynamics
5. Financial skills
6. Emotional stability
“You can name almost anyone to act as Attorney, be it a family member, friend, or trust company. However, it’s critical that the person you choose is someone you can trust,” according to Ms. Plant.
The following is a list of tips for appointing an Attorney:
1. Talk about it. Discuss your property and personal care with the person you want to appoint as your Attorney. Determine if they would be comfortable with the role.
2. Deal with your business. If you own a business, you may need someone with business experience to act as your Attorney for Property.
3. Understand the law. Get advice about the type of ownership in property you have, and learn your best options to protect your property in the event you are incapacitated.
4. Understand the Attorney’s role. Get advice for you and your Attorney about when their role commences and ends.
Today on Hull on Estates, Noah Weisberg and Natalia Angelini discuss the probate of a lost will and the case out of the Supreme Court of British Columbia, Thierman Estate v. Thurman. A link to the case can be found here.
If you have any questions, please e-mail us at email@example.com or leave a comment on our blog page.
Crematoriums, according to a new regulation, are not supposed to be built closer than 300 metres away from residential areas. But, in Moore Park, in the GTA, the crematorium was built only 16.5 metres away from the neighbourhood.
“When I go outside and sniff, I wonder ‘Is this human remains or animal remains,’ according to a resident interviewed by the Toronto Star.
The crematorium applied to the Ministry of the Environment, and was granted the right to build new cremators that will allow for more frequent burns. The crematorium argues that the emissions produced by the cremators will be reduced and regardless, they do not need to follow the new regulations as their original facility was built prior to the regulations.
The local councillor has launched an appeal of the Ministry’s decision, arguing that the new cremators should be subject to the new regulations. The purpose of the regulations, according to the councillor, is to protect public health. Dr. Perry Kendall, B.C.’s chief medical health officer, warns that emissions from crematoriums pose potential health risks. Cremation, according to Dr. Kendall, could cause the release of contaminants, including mercury, cadmium, and lead.
As cremation becomes a more popular choice, the issue of emissions from crematoriums is likely to grow.
Recently, the Welsh Assembly backed legislation which will create major reform for organ donation by switching from an opt-in to an opt-out system. Once this legislation comes into force in 2015, consent for organ donations will be presumed unless expressly refused by potential donors. Wales will join countries such as Spain, Poland, Sweden and many more which currently use a similar opt-out scheme. For these nations, the belief in the ‘kindness of strangers’ is no longer relied upon for organ donation.
This new Welsh legislation reflects studies similar to those conducted by a leading Canadian charity, which stated that while 90% of Canadians support organ donation, under a quarter have expressly opted to legally signify their intentions to donate.
Organ donation is a controversial subject for religious, ethical and political reasons. Canada continues to rely on an opt-in system in all provinces and territories due to concerns regarding whether a potential donor has stated their wishes clearly enough to allow for organ harvesting.
These tensions will continue as the trend towards longer waiting lists and less donors is predicted to increase. Statistically, “the older sector of the population is both a larger consumer of donated organs and a smaller contributor of donated organs.” Therefore, as the Canadian population ages, the pressure to explore alternative options will escalate, and the friction between principles of self-determination and the need for greater access to viable donors will likely intensify.
If Canada does chose to switch to an opt-out system, then it will be of even greater importance for all individuals who are concerned about opting-out of donating to ensure that their intentions are clearly expressed in their will and Powers of Attorney. This is especially so as relying on donor cards is problematic as they can be easily misplaced; and testimony of relatives can be misinformed. Wills, however, are always readily consulted and available, and copies are kept in the possession of the estate practitioner who drafted them.
Indeed, even without such a bill present in Canadian legislatures today, it is still of the utmost importance for Canadians to express their wishes in a legally binding document as opposed to relying on relatives, who’s own wishes may conflict with those of a potential donor after they have passed.
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While funerals are generally conservative and solemn affairs, the coffin makers at England’s Crazy Coffins have been trying to prove for the last 25 years that this does not always have to be the case.
Crazy Coffins is just one of several companies which specialize in making coffins in just about any shape or design you can think of. Do you consider yourself to be a spicy little number? How about being interred in a six foot long Habanero pepper? Can’t imagine life without your cell phone? No worries, they can arrange for you to be buried in a six foot long replica. Other options include fish, a Rolls Royce, a Viking boat, and a skateboard, just to name a few.
The idea of making your mark after you are gone is hardly new. Indeed, the word Mausoleum, comes from the tomb of King Mausoleous of the ancient city of Halicarnassus, whose tomb was so grand, that it was and still is considered one of the seven wonders of the ancient world. But I digress…
The modern fascination with exotic coffins is best seen in Ghana, from where the enterprising Crazy Coffin creators draw their craftsmen. According to a recent article in the UK’s Daily Mail, many Ghanaians believe in an afterlife and regard deceased ancestors as more powerful than the living, which beliefs have driven some to make exotic resting places for their loved ones. The shapes of Ghanaian caskets often reflect the deceased’s profession or links to certain clans.
With an exotic coffin, the opportunities for those who enjoy the thought of planning for the end of life with a little irony seem truly endless. Instead of having a final nail in your coffin, your coffin could instead be a nail.
Of course the final irony is this: As discussed in my blog earlier this week (“Who decides what happens at your funeral?”), in Ontario, the executors of your Estate do not have to follow your wishes with respect to the manner of your burial. So if you are committed to the idea of a six foot long replica of The Edmund Fitzgerald as your final resting place, it may be a good idea to let your executors in on the joke ahead of time.
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Unfortunately, tragic news of persons who have gone missing have been in the headlines much too much recently. While any such news is heartbreaking – the sheer volume of these recent news stories has been tremendously painful for our national psyche. The loved ones of the missing persons must deal with not only their unfathomable grief, but must also eventually address the mundane financial responsibilities of these missing persons. After all, there remain bills to pay, dependants to support, and property which must be secured and managed on behalf of the missing person.
As Estate lawyers unfortunately know all too well, there is a complex Court process to grant a person with authority to manage a missing person’s property in his or her absence.
In Ontario, the Absentee Act deals with circumstances in which a person is considered to be an “Absentee,” i.e. a person "whose whereabouts are unknown and as to whom there is no knowledge as to whether he or she is alive or dead.” In such circumstances, the Court has the power to appoint a “Committee” who has the authority to manage the missing person’s property in his or her absence.
The Absentee Act provides that certain persons, including the Absentee’s spouse, child or other family member, the Attorney General, or even a creditor, can make application to the Court for a declaration that the person is an Absentee and seek appointment of a Committee to manage the person’s property. The Court may declare a person to be an Absentee if it is shown that “due and satisfactory inquiry” has been made into their disappearance. (For a further discussion regarding the test which must be met to declare a person to be an Absentee, I recommend our Probater article, “The Absentee Act: it could happen to you”.) If satisfactory inquiry has been made and the missing person is declared to be an Absentee, a Committee will be appointed. The Committee will have to submit a management plan setting out how they propose to manage the Absentee’s property. In addition to being responsible for the custody, care and management of the Absentee’s property, the Committee will have authority to expend moneys out of Absentee’s property for the purpose of endeavouring to search for the Absentee and in endeavouring to ascertain whether he or she is alive or dead.
The question that inevitably arises in any such circumstances is, what happens if the Absentee in found one day, thankfully, alive and well? If the Court is later satisfied that the person has ceased to be an Absentee, it can make a declaration to that effect and set aside the order declaring the person to be an Absentee for all purposes (except for things done in respect of the Absentee’s property while such order was in force). In such cases, the Committee will have the obligations of a fiduciary to account for the Absentee’s property.
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In a recent STEP Bermuda professional seminar about contentious trusts, it was noted that it is easier to “fix” mistakes made in administering a trust, rather than to try to correct errors made in creating a trust’s structure.
Issues that arise in trusts and estates administration often stem from poor record-keeping and questionable document drafting. It is a trite warning to practitioners who deal with these issues to be meticulous in their file-keeping, and to make sure their documents are up-to-date and in order.
However, some of the most common mistakes made in administering trusts – mistakes that can ultimately end up in court, remain:
- Un-notarized trust deeds or other required documents, or too few witnesses to documents.
- No accounts being available.
- No valid trustee: i.e. no documents on file that prove the trustee has been appointed and that the trust has been properly constituted.
- Non-formal (email) notifications only. While email is useful for communications for non-contentious cases, formal notifications are required in those that are contentious.
- Powers to vary the trust are applied retrospectively, but this fact is not included in a new trust deed.
- Variations of beneficial interests, or pushing forward the trust’s perpetuity period when such actions are not correctly recorded in the trust deed.
Several risk management tools are available for trustees. These tools provide a level of protection from liability, if the trustee is able to prove that he or she acted in good faith at the requisite time.
An exculpation clause in the trust deed is a common form of defence for trustees; however, willful default of trustee duties and obligations will still render the trustee in breach of trust – likewise, dishonesty cannot be exculpated, as seen in the case of Amitage v Nurse  Ch. 241 (CA) – Millett LJ.
Such clauses have been viewed as unfair to trust beneficiaries as all risk is allocated to the beneficiary without providing redress or any ability to seek a remedy.
Such concerns have led to proposals for reform, such as requiring settlors of trusts to be provided with independent legal advice regarding the effect of exculpation clauses, where such clauses would only be upheld when such independent advice has been readily provided. Alternative clauses have also been proposed such as limitation periods for actions against trustees and narrower exclusions of responsibility for specific trustee functions.
Offshore courts tend to be somewhat more flexible than those onshore regarding trustee liabilities. This greater leniency is likely a result of fewer tax consequences arising out of trustee errors offshore.
With these trends in mind, trustees in Canada must be aware of the high level of responsibility their positions bestow and of the possible future limitations that they can rely upon in order to assist in their role as fiduciaries.
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