CONCERNS WITH JOINT ASSETS WITH CHILDREN FOR ESTATE PLANNING PURPOSES

Clients often ask us to transfer their assets (including their house) so that it is held jointly between them and one or more of their children. Transferring your assets into your name and one or more of your children’s names as joint tenants in order to avoid probate tax is often a bad idea. [Read more…]

TRUSTS AND THEIR USE IN ESTATE PLANNING

Trusts are similar in function to a gift left to someone in a Will, except that Trusts can be set up either within a Will or while the “settlor” (the person creating the Trust) is still alive. A Trust is created using a written instrument that sets out the terms of the Trust. A Trust needs to appoint at least one trustee, who administers the Trust for the settlor according to the terms set out in the document. Most Trusts are set up to be “irrevocable” which means that once they are set up and the assets and/or money being held by the Trust is transferred to the trustee, the settlor cannot change their minds and get the assets or money back. [Read more…]

TO AVOID CLOSING DELAYS, CONSIDER BRIDGE FINANCING

It is common for people who are selling a house and buying a replacement home to have both deals close on the same day. This can sometimes result in closing delays. Your sale transaction has to be completed before your purchase transaction can close as the funds from the sale are required for the purchase. There is no way for you to know how many other “downstream” transactions have to close as well. If your sale transaction closes late in the day there may not be enough time to transfer funds to the lawyer acting on the other side of your purchase transaction. In that event, your furniture may be stuck on a moving truck and the moving company will likely charge you hefty standby fees. [Read more…]

Planned or charitable giving is a unique opportunity to “have your cake and eat it too”. A gift to a charitable organization can help you take full advantage of incentives offered by governments as it relates to estate planning and estate taxes while allowing you to provide for charitable organizations that are close to your heart. [Read more…]

ALL IS NOT LOST WHEN AN ORIGINAL WILL IS LOST

Executors and the beneficiaries of an estate may panic when they discover the deceased’s original Will has been lost or destroyed or they just cannot find it. The courts may allow a copy of a Will to be probated in the place of the original Will in the right circumstances.

You must be able to show:

– The Will was properly signed:

o If the Will was handwritten (a Holograph Will) you must prove the handwriting and the signature are those of the deceased
o If the Will was typewritten that it was signed by the deceased and properly witnessed (2 witnesses present at signing). A beneficiary (or their spouse) should not be a witness;

– What the Will means. That is usually obvious, but with a Holograph Will, it might not be;

– There was no intention to revoke the Will. When an Original Will held by the deceased cannot be found, there is a legal ‘presumption’ the deceased intended to revoke the Will. There, you must be able to show the original Will is not missing because it was revoked and therefore torn up, burned, thrown away, etc.

Missing Will scenarios come in all varieties. Here are some (assume the original Will cannot be located for each of these, and assume you can rebut the presumption of revocation):

– You have a copy of the original Will that was prepared by a lawyer and was properly signed with witnesses. Ideally the Will drafting lawyer (and/or their staff) will provide an affidavit saying the copy is the same as the original (except for any extraneous things that may be written on the copy, like “COPY”):

– You have a copy of a Will that does not have any signatures, but was prepared by a lawyer. Although less straightforward to have accepted by the courts, if the lawyer can recall (and/or has notes) and can confirm preparing the Will and having it properly signed and witnessed, you have a better chance of the copy of the Will being accepted by the courts.

– You have no copy of anything, and there may or may not be lawyer’s notes regarding its contents, but there is certainty that a Will was signed. This will be much more difficult, but if the Court can be satisfied on what was in the original Will, you may succeed. You will need good evidence to succeed – conversations, anything that the deceased may have written about their intentions (journal or diary entries, letters to family, friends, advisors).

Although it is preferable that a lawyer hold onto the original Will as they can provide safe storage and ready access when needed, sometimes, an individual prefers to have their original Will in their own hands. When an individual keeps the original Will rather than leave it with their lawyer it behooves all to do the following –

– For lawyers before releasing the original Will, make a copy of the Will and store it in your database system with all notes pertaining to the creation of the Will, and notations regarding when, and ideally why, a client has taken possession of the original Will. If they are taking the Will after you have stored it for awhile, ask if they are intending to revoke it;

– For the non-lawyer holder of the original Will, store it in safe keeping – that would be a locked cabinet that is fire, water, and tamper proof. Ensure that one trusted confidante knows where the original Will is, and how to access it. If it is in a safety deposit box, ensure someone else can access the box on death, as the bank may not allow access. If they do, they may not let you take the Original (really!);

– Ideally also make a copy of your original Will and store it offsite in another secure system. Offsite locations can be both a physical space such as a safety deposit box and also in a cloud based data storage system such as DropBox, Google Docs, OneNote etc.

If you find yourself as either an estate trustee or a beneficiary in the unenviable position of knowing there was an original Will, and not finding it, before you give up all hope, consult with a lawyer that has specialized knowledge in the area of estate administration. They can guide you through having a copy of a Will probated by the courts.

CONTACT US

Feel free to contact us at any point for assistance or advice with respect to Estate Law, Estate Planning or Estate Administration or Estate Litigation. We may be reached at 705.435.4339 or contact us via email.

OUTSTANDING CLAIMS AGAINST AN ESTATE

If you are acting as an Estate Trustee, you may have to deal with a person who decides they want to make a claim against the estate for money they believed the deceased person owed them, for any reason. Sometimes a person may only make a suggestion that they will file a claim but have yet to follow through on actual court documents. In any event, an Estate Trustee could be liable if they distribute the estate with the knowledge that the claim is a possibility and that person later files a claim. [Read more…]