1. Thinking foolishly that you can avoid making your will to protect your money and loved ones.

Without a will, the government laws determine who is in control of your stuff. This can lead loved ones to hire lawyers for court hearings. Read my previous post, Online Wills vs Lawyer-Prepared Wills: Which Should You Trust? Part 1.

2. Making the wrong kind of will and not expecting a train wreck.

Making a will with only online guidance can give you a false sense of security. You could create more problems for loved ones. Invest in legal advice for your needs, regardless of the size of your estate.

3. Making all your assets joint to try and avoid probate at all costs.

You lose control with joint assets. These jointly owned assets create tax headaches and legal troubles. You need independent legal advice before transferring assets into joint ownership.

4. Forgetting to protect those with special needs in your will.

You can add simple trusts in wills to provide for minors and those with special needs. Find a lawyer to discuss how trusts can protect.

5. Choosing the wrong person to be your estate executor or estate trustee.

Everyone has different needs. Know your options for choosing the right executor to confirm choices with your lawyer. It’s expensive to remove a bad executor.

6. Ignoring legal and moral claims.

Keep your promises and legal or moral obligations to loved ones. This includes married and common law spouses. Otherwise, expect lawsuits after you are gone.

7. Waiting until it’s almost too late to make your will.

Don’t wait until a critical illness prevents you from having legal capacity to make wills or grant powers of attorney. Preparation is key.

8. Using the wrong lawyer to make your estate planning documents to save money.

Hire lawyers with experience handling estates to obtain practical advice and prevent mistakes in your will and estate plan.

9. Not keeping your will current and up to date.

Have you retired or sold you business? Are your beneficiaries still alive and appropriate? Do you need a second private will? Did you buy foreign assets?

10. Can your attorneys and executors find your original documents?

Only the original documents are legal in court. Ensure that people can find them when the time comes.

Do you have questions about making your will? I have helped clients since 1978 plan their estates to protect their loved ones. Contact me.

I can offer you a meeting to discuss your needs by Zoom or in-person in my Toronto west-end office. Arrange your no-obligation meeting today to avoid making any scary estate planning mistakes.

I am a Certified Specialist in Estates and Trusts Law. I can give you expert tips to end your estate worries.

The post 10 Expensive Will Mistakes That Can Cost Loved Ones …and How to Fix Them appeared first on Edward Olkovich Law.

In Canada, there is a difference between legal and beneficial ownership. This is a distinction that can cost you. And it is real. This post is not legal advice which you need to determine ownership. Legal advice is always based on personal circumstances.

Whenever there is a gratuitous transfer (without payment or consideration), how do you prove there was a gift. If the gift comes from a deceased parent, they cannot come to testify in court?

The law does not presume gifts were made or intended. Canada’s Supreme Court in a 2007 decision in Pecore sets standards. The court declared that where a gratuitous transfer of property is made, then the person receiving the property is presumed to hold it for the beneficial (real) owner.

The person claiming a gift must satisfy a judge that there was a gift. How much will that cost in court? Thousands, I would say. If this was a transfer between a parent and a child, problems began to double when the parent is no longer able to testify that a gift was intended.

Here’s an example. John helps his father, Oleh. who stopped driving. Oleh tells John he will leave his house to him and signs a deed giving John the house. When John dies, his will reads, “divide everything 3 ways between my 3 children”. But Oleh gave his house to John, and there’s not much left to divide. Unfortunately. John’s siblings hire a lawyer to sue Oleh’s estate saying that their brother, John, only has legal and not beneficial title to the property. The siblings rely on the presumption that no gift was intended. Therefore, John holds the house on a resulting trust based on the principles in Pecore.

A resulting trust means that the person who receives the property (John) may be the legal owner but holds the property in trust for the person who transferred the property (Oleh) to him. The person who gifted the property is the beneficial owner unless there is proof of an intention to gift.

Here is another example from an estate.

Ontario imposes a provincial Estate Administration Tax on assets when a person passes. The beneficial owner is liable for provincial estate tax of roughly 1.5% (on worldwide assets) except for mortgages and foreign real estate. Exemptions for this provincial estate tax are given to jointly owned assets not controlled by wills.

If there is a gratuitous transfer, then beneficial ownership means that they are controlled by a will and not by the person with legal ownership. The beneficial owners are liable for provincial estate tax if they own the property and retain beneficial ownership.

John may be forced into court to prove a gift was intended when Oleh made the gratuitous transfer to him. Of course, this intention was clear for John when the gift was made. However, if there is no confirmation that a gift was intended, the decision may be left to a judge. It may be costly to prove intention after-the-fact when Oleh is no longer alive to testify in court.

That is the danger when you receive a gratuitous transfer. This could be a joint bank account or other jointly owned property; you may be required now to prove a gift was intended years after the transfer of property. Court decisions explain what evidence may be required to establish an intention make a gift. A deed of gift can be prepared and signed with independent legal advice which may help prove no undue influence was used.

Are you a legal or beneficial owner of the property? I can help.

Need help starting your estate planning journey? I have helped clients since 1978 plan their estates and protect their loved ones. Contact me.

I can offer you a meeting to discuss your needs by Zoom or in-person in my Toronto west-end office. Arrange your no-obligation meeting today to avoid making any scary estate planning mistakes.

I am a Certified Specialist in Estates and Trusts Law. I can give you expert tips to end your estate worries.

The post Ontario’s Gift Law Could Cost You Thousands appeared first on Edward Olkovich Law.

Why is that? Because if you don’t make a will, the government will make one for you. They will not allow for variations or reducing taxes. If you do not have a will, government rules decide who controls all your stuff. Their rules, not yours, decide who inherits and when. People with special needs or your favourite causes do not get any special treatment.

Find the time to invest in a professionally prepared will for your loved ones’ benefit. You can decide who controls your stuff, who benefits and when. Plus, you can deal with any special needs or make gifts to your favourite charities that count on your continued support. Read about the dangers of do-it-yourself wills in my post, Online Wills vs Lawyer-Prepared Wills: Which Should You Trust? Part 1 and Part 2.

Gifts to charity also give you charitable tax donation credits that can reduce your income taxes.

If you have a business or corporation, you need legal help to make wills and charitable gifts.

You can still be generous by gifting specific assets that allow you to name designated beneficiaries. These items include registered investments like RSPs, RIFs or tax-free savings accounts and some pension benefits.

You can designate a named beneficiary of all or a portion of these assets by signing a designated beneficiary form from your provider that you deliver to your financial institution. This form confirms you named a designated beneficiary.

Designating beneficiaries should be made on forms supplied by your financial institution. You can change your designated beneficiary at no cost to you. names designated assets are not controlled by your will and not subject to provincial estate taxes.

You will still receive a charitable tax donation credit when this designated amount is distributed to a charity. This credit can be used to reduce your income taxes and leave more for your loved ones.

Remember, only you can make your will and estate plan for your loved ones.

How to Get Started

Have questions about making a will? I can help. Contact me for a meeting. I have helped people for decades to solve their will and estate planning issues.

I can offer you a meeting to discuss your needs by Zoom or in-person in my Toronto west-end office. Arrange your no-obligation meeting to make a will.

I am certified by the Law Society of Ontario as a specialist in Estates and Trusts Law. My law office is in the west end of Toronto.

The post Why Making Your Will Is Crucial appeared first on Edward Olkovich Law.

Even if your estate trustee compensation is not specified in the will, you are entitled to it by law. Compensation acknowledges your time and trouble in administering an estate.

Here is my infographic about estate services that you must perform in 3 different phases:

In the first phase, you are protecting estate assets. In phase two, you are probating a will to collect and sell estate assets. In the third phase, you are paying everyone.

In each phase, we recommend that you obtain legal advice. This should be paid for by the estate to protect you and the estate beneficiaries. In the last phase, you may be advertising for creditors, obtaining an income tax clearance certificate and reporting to the beneficiaries on the estate distribution.

Usually, you and hire a lawyer to prepare a formal release to be signed by all residual beneficiaries to approve your compensation. Releases confirm that your distribution and handling of the estate was satisfactory. Releases are legal documents which should be prepared by lawyers.

Releases are usually customized. This document should include a distribution proposal showing individual beneficiaries’ entitlement and approval of your claims for compensation. The release confirms that the beneficiaries do not require any additional information and have no further questions regarding your handling of the estate.

If all residual beneficiaries agree and sign releases, you can avoid the need to prepare a passing of accounts. This passing is a process where courts will review and deal with objections to your estate accounting. If necessary, a trial can be held to deal with any objections that cannot be resolved.

How to Get Started

Need help during your journey as an Ontario estate trustee? Contact me for a meeting. For decades, I have helped estate trustees to solve estate issues by going to court or through mediation.

I can offer you a meeting to discuss your needs by Zoom or in-person in my Toronto west-end office. Arrange your no-obligation meeting today to avoid making any scary mistakes.

I am a Certified Specialist in Estates and Trusts Law. I can give you expert tips to end your estate worries.

The post Essential Skills for Ontario Estate Trustees: Navigating Your 3-Phase Process appeared first on Edward Olkovich Law.

Ontario executors must file provincial Estate Information Returns 180 calendar days after estate courts issue your certificate of appointment. Your duty is to comply with Ontario’s Estate Administration Tax Act.

The government has a guide to explain your responsibilities. The government’s guide to the Estate Information Return can be found here.

The government states the purpose of the EIR is to:

1. Determine the fair market value of the estate,
2. Calculate estate administration tax (EAT) estates must pay,
3. Assess all estate taxes due and impose penalties.

The EIR details the value of the estate used to calculate the EAT paid to the estate court. The EIR must be signed by all estate trustees. The EIR form does not have to be signed in front of a lawyer or notary. You should retain a copy of the EIR for your file.

EIR Requirements

Applications for estate certificates are filed with the Superior Court of Justice. You do not file the EIR at the time you apply for your court certificate.

Once you have your certificate of appointment, the EIR is filed online with the Ministry of Finance. The EIR must be filed within 180 calendar days of the date the estate certificate was issued.

Making a false or misleading statement is an offence under the Act. There are deadlines for filings as well.

Offences are punishable by fines and imprisonment including:

a) Fines of at least $1,000, but not greater than twice the amount of the tax payable by the estate if more than $1,000.
PLUS
b) Imprisonment for up to two years.

Estate Information Returns (EIR)

Your duty as estate trustee is to provide information about all estate assets. This allows the government to assess and audit the estate for provincial tax (EAT). Fair market value of estate assets is required as of the date of death.

You must provide details for each category of assets in an online filing since early 2025. You submit your completed EIR for delivery to the government.

The EIR collects specific details in five different categories:

1. real estate in Ontario
2. bank accounts
3. investments
4. vehicles and vessels
5. other property

Each category has different requirements.

When bank accounts and investments are held by advisors or institutions, they can provide a breakdown of the information that can be filed.

The category “other property” is a catchall. It includes the value of any business interest, copyrights and trademarks.

Included items are household contents, art, jewelry, and any loans that may be owing to the deceased.

You may have prepared a preliminary estate inventory of assets and liabilities. Your records and supporting statements or records must be kept for inspection. If you have located additional assets, you are required to pay additional EAT.

The asset inventory does not need to include every cup and saucer. What is relevant is the value for estate tax purposes.

Liabilities for the Estate

Only mortgages on land in Ontario are deducted to calculate the provincial estate tax.

Liabilities such as funeral expenses are not deducted on the EIR. Credit card debts are also not deducted unless secured as mortgages.

Retaining Estate Records

You will need to keep your estate inventory and supporting paper and digital records.

The Ministry can assess or reassess the values on your EIR. This can happen years later. You will have the right to appeal or object to the notice of assessment. Your records must cover any appeal period, which can be 6 years or more.

Your records may also be needed for federal income tax purposes.

Subsequently Discovered Estate Assets

What if you subsequently find new estate assets? You will need to take two steps.

First, you need to swear an affidavit to explain this to the estate court. You will pay additional estate tax then.

Second, you must deliver an amended EIR to the Ministry of Finance.

Corrections or incomplete information on the EIR create complications. You must deliver a new EIR to explain any corrections or incomplete information if you find additional assets not included in your probate inventory.

Keep proof of delivery to avoid any late filing penalties or assessments.

How to Get Started

Need help during your journey as an Ontario estate trustee? Contact me for a meeting. I have helped estate trustees for decades to solve estate issues by going to court or through mediation.

I can offer you a meeting to discuss your needs by Zoom or in-person in my Toronto west-end office. Arrange your no-obligation meeting today to avoid making any scary mistakes.

I am a Certified Specialist in Estates and Trusts Law. I can give you expert tips to end your estate worries.

The post What is an Ontario Estate Information Return (EIR)? appeared first on Edward Olkovich Law.

You should obtain legal advice before you act as executor or estate trustee. This advice includes a review of the will(s). The sooner you obtain this legal advice, the safer you will be. Read my executor’s glossary to help you.

1. Find the Original Will

First, if there is a will, you must find the original signed will. If there is no will, you need legal advice about what reasonable searches are required to locate any will.

New legal rules allow judges to validate documents that do not satisfy all legal requirements for death on or after January 1, 2022.

Documents that could amend or represent formal wishes may need to be saved and reviewed by your lawyers.

If there is a will, the witnesses to the will must sign a document under oath called an affidavit of execution. This document confirms the will was properly signed. This affidavit must be filed with the court.

The original will is also filed with the estate court with your application to prove the will is legally valid. Your appointment as estate trustee with a will (or without a will) must be certified by the court to administer the estate.

If all documents are in order, the court issues an estate certificate. This is called a “certificate of appointment of estate trustee” (with or without a will).

2. Court Application to Appoint Estate Trustee

Lawyers prepare your estate application and legal forms to file with the court. There are different forms for estates valued at less than $150,000 than for estates valued over $150,000. At filing, the provincial estate tax is paid. This tax is called Ontario’s estate administration tax (EAT). It was once called provincial probate tax.

Notice is mailed to all estate beneficiaries. This informs them you are applying to administer the estate.

You usually do not need to appear in court. The estate court issues a certificate without anyone appearing in court. Court processing can take months depending on the volume of applications filed and additional time for any corrections. After this, the court can issue an estate certificate with a will.

The estate court staff reviews estate court applications. They check for details and can request extra materials before submitting documents for final approval. Judges may accept or require additional information.

This process is usually done without anyone appearing in court. It can take 3-6 months or longer.

3. How to Prepare the Estate Inventory

You need to prepare an estate inventory for your lawyer with fair market values as at the date of death. This inventory is used to calculate both provincial estate administration tax (EAT). It is not filed with the court.

You identify which assets are controlled by the will. World-wide assets are valued and subject to provincial EAT if they are controlled by wills.

Designated assets can have named beneficiaries. These designated assets include: life insurance, registered investment plans or pensions and are not subject to provincial probate tax if beneficiaries are named.

Please see my separate guide on how to prepare an estate asset inventory.

4. Calculating Provincial Estate Administration Tax (EAT)

No debts, except for mortgages, can be deducted to calculate EAT. Credit card debt and funeral expenses are not deducted.

Assets that are designated to named persons as beneficiaries (other than to the “estate of”) are not subject to estate administration tax. Ontario taxes are roughly 1.5% on estate assets over $50,000.00. There is no tax on the first $50,000.00 of estate assets.

I will prepare a draft estate inventory for you to approve. This will estimate the provincial tax payable. You are not required as executor or estate representative to pay any estate debts using your own money.

Certified Cheque or Bank Draft required for Ontario Minister of Finance

In the past, bank drafts were provided to pay the provincial EAT when the estate court application is filed.

Bank policies have changed and bank drafts or certified cheques for EAT from the deceased’s own bank may not always be available.

5. Provincial Probate Penalties

Estate trustees who under report provincial estate tax face penalties for not including or misrepresenting estate values. Penalties can include:

a) a fine of at least $1,000 or twice the tax payable by the estate;
b) imprisonment for not more than 2 years; or
c) both.

Appraisals and supporting documents are usually required to substantiate your values.

As estate trustee, you must retain financial records for a minimum of six years. You can be reassessed for EAT and income taxes.

What if you discover errors in your estate asset inventory? You are required to pay any extra provincial estate tax. You also must amend the EIR.

How to Get Started

Have questions about probate? Need help with administering an estate? I can help you on your journey as an Ontario estate trustee. Contact me for a meeting. I have helped estate trustees for decades to solve estate issues by going to court or through mediation.

I can offer you a meeting to discuss your needs by Zoom or in-person in my Toronto west-end office. Arrange your no-obligation meeting today to avoid making any scary mistakes.

I am a Certified Specialist in Estates and Trusts Law. I can give you expert tips to end your estate worries.

The post Ontario Probate Success – Your Essential Guide appeared first on Edward Olkovich Law.

I can help you if you are an estate trustee.

You do not have feel overwhelmed. Google may offer all kinds of checklists to help you if you’re an executor. Often these providers are not dealing with Ontario laws. They may offer checklists that are generic and do not review the specifics in any will or Ontario laws that you must follow.

Without a will, you need to hire a lawyer to apply in court to be appointed as an estate trustee.

If there is a will you may be concerned about where to spend your time. You may feel overwhelmed by all the new tasks and terminology.

I have broken down the estate administration process into 3 phases (protect, probate and pay) as set out in the infographic below.

This graphic breaks down estate administration into 3 phases. You do not have to panic or feel you have lost direction over the 1 – 2 years or more that it may take to close an estate.

Simple terms like opening and closing an estate may sound confusing. But only in Hollywood is there a formal reading of the last will in a lawyer’s office. Closing an estate means paying everyone, including the tax department.

Check out my Ontario Executors Glossary where I explain more terms that executors need to know.

The term probate was previously use to describe the process when the court validated an original will. Probate confirmed who the executors and beneficiaries were. Back then an estate executor would probate a will to collect and sell estate assets.

This estate terminology changed in Ontario in 1995. If you are named in a will as an executor, you would no longer apply for letters of probate to handle an estate. Instead, you would have a lawyer apply for a certificate of appointment of an estate trustee with or without a will. If there was an intestacy (no will), you receive a certificate of appointment of estate trustee without a will.

Most places continue to use the term probate. People understand probate’s negative connotations relating to provincial probate fees or probate taxes. People go through a lot of trouble to try and avoid having to probate an estate. These attempts can often lead to court cases that can drain estates of cash.

If there is no will, Ontario laws dictate who oversees an estate, who inherits and when. There is no room for variation and no provisions are made for anyone’s special needs or special assets. There is no tax planning if there is no will. You may need a court lawyer to appoint you as the estate trustee without a will.

How to Get Started

Need help during your journey as an Ontario estate trustee? Contact me for a meeting. I have helped estate trustees for decades to solve estate issues by going to court or through mediation.

I can offer you a meeting to discuss your needs by Zoom or in-person in my Toronto west-end office. Arrange your no-obligation meeting today to avoid making any scary mistakes.

I am a Certified Specialist in Estates and Trusts Law. I can give you expert tips to end your estate worries. 

The post Ontario Estate Trustees Follow These Steps appeared first on Edward Olkovich Law.

Here are 10 questions for which Ontario estate executors need answers. If you expect your executor to act promptly, collect answers to these questions for your Ontario estate trustee.

1. Where can I find the original will?
   Will your executor know where to find the original will to be reviewed by an estate lawyer?
2. Have you arranged a funeral and how do I deal with grieving relatives?
   Did you make your wishes known and prearranged your funeral/burial wishes?
3. Can I run the business or do I hire someone to do it?
   How dangerous will this be for someone without experience?
4. How do I secure estate assets and help dependants and pets?
   Have you prepared an inventory and where to find it? Include passwords and any digital assets.
5. Can I hire lawyers to defend the will or settle any lawsuits?
   How many disgruntled relatives and broken promises are there?
6. What property is to be sold once the estate certificate is received?
   Executors need directions in the will and legal advice to sell estate assets.
7. What investments must be managed for short or long-term goals?
   Who is qualified to give this advice?
8. What will need to be insured and what insurance benefits are there?
   Does the estate trustee know what information is needed to collect insurance?
9. Who prepares your tax returns?
   Tax paperwork can drive executors crazy, cause delay and add stress.
10. How do I contact beneficiaries?
    Do you have current contact information for beneficiaries?

How to Get Started

Need help during your journey as an Ontario estate trustee? Contact me for a meeting. I have helped estate trustees for decades by solving estate problems, going to court or through mediation.

I offer you a meeting to discuss your needs by Zoom or in-person in my Toronto west end office. Arrange your no-obligation meeting today.

I am a Certified Specialist in Estates and Trusts Law. I can give you expert tips to end your estate worries.

The post Essential Questions Every Ontario Estate Trustee Must Ask appeared first on Edward Olkovich Law.

Here is a list of top 10 executor headaches that can make your job more stressful. You will require experienced legal advice to keep you out of trouble.

1. The estate is broke. Do the math and check if you have enough money to pay all the bills.
2. Real estate is always a headache. If you must sell real estate you have added responsibilities.
3. Investments and Commercial Real Estate. Does the estate include investments, including commercial real estate that requires attention?
4. Foreign Assets. Following the legal rules to probate an estate in another language and jurisdiction may be time consuming and complex.
5. Business Comes Before Pleasure. Is there an active business with partners or a corporation with shareholders in the estate?
6. Your Age Considerations. Does your age or health prevent you from starting and finishing your tasks over the next year or more?
7. Conflict or Conflict of Interests. Are there signs that the beneficiaries would disagree and give you headaches? Do you have a conflict of interest?
8. Contested Wills. Do you think that anyone will contest the will?
9. You Can’t Hire Help. Does the will prohibit you from hiring professionals to assist you with your duties?
10. Tedious Long-Term Trusts. Does the will require you to manage a Trust on a long-term basis, say over the next 5 to 10 years?

These and other executor headaches can make your job as estate trustee more stressful. Be forewarned. You will need experienced legal help to deal with these headaches.

How to Get Started

Need help during your journey as an Ontario estate trustee? Contact me for a meeting. I have helped estate trustees for decades by solving estate problems, going to court or through mediation.

I offer you a meeting to discuss your needs by Zoom or in-person in my Toronto west end office. Arrange your no-obligation meeting today.

I am a Certified Specialist in Estates and Trusts Law. I can give you expert tips to end your estate worries.

The post Take This Stress Test: Top 10 Triggers for Ontario Estate Trustees Revealed appeared first on Edward Olkovich Law.

Need help handling an estate with or without a will? Contact me for a meeting. I have solved estate problems for decades by going to court or through mediation.

I offer you a meeting to discuss your needs by Zoom or in-person in my Toronto west end office. Arrange your no-obligation meeting today.

I am a Certified Specialist in Estates and Trusts Law. I can give you expert tips to end your estate worries.

The post My wife’s brother never claimed his part of their mother’s estate. What do we do now? appeared first on Edward Olkovich Law.