Janet now asks, “What is the difference between executor and estate trustee?”

Executor or Estate Trustee?

The gender-neutral term used today is estate trustee. For simplicity, the word trustee is often used throughout the will. There may also be separate trusts created by the will with separate trustees. This is common for minor children.

Older wills commonly used the terms executor and executrix. Ontario also uses a gender-neutral term, estate trustee with a will or estate trustee without a will. The estate trustee becomes responsible for the estate property upon death. The trustee may also manage any trusts established by the will. In many cases, the same individual serves both functions.

A properly drafted will should always address contingencies. One important contingency is the death or incapacity of the estate trustee before the estate administration is completed. For this reason, every will should appoint an alternate trustee.

For example, you may appoint your spouse as trustee and your children as alternate trustees. If the children are minors, however, they cannot act until they reach the age of majority.

It is generally not advisable to appoint a trustee or alternate trustee without first obtaining their consent.

In some jurisdictions, the terms personal representative may be used for estate trustee. Some forms still refer to executors. You may not be able to change the forms.

What if your existing will only refers to executors? In my opinion, it is not necessary to update it only for this term.

Watch for my next post explaining more will terminology.

Book Your Discovery Meeting

Do you have questions about making your will? I have helped clients since 1978 plan their estates to protect their loved ones. I wrote the book called, Estate to the Heart: How to Plan Wills and Estates for Your Loved Ones. Contact my office.

I can offer you a discovery meeting to discuss your needs by Zoom or in-person in my Toronto west-end office. Request your no-obligation discovery meeting today to avoid making 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 Explaining Common Will Clauses – Part 2 appeared first on Edward Olkovich Law.

Avoiding Legal Boilerplate

Words such as “devising” and “bequeathing” frequently appear in legal documents like wills. To many people, they sound like a foreign language. I do not use foreign phrases or legal jargon in the wills I prepare.

Legal documents often contain traditional boilerplate wording. Many people have difficulty understanding references to devises and bequests of real and personal property. Many lawyers would struggle to explain the distinction between the two terms. A devise is a gift of real property or real estate under a will. A bequest is a gift of money or any property other than real estate.

Standard clauses are commonly used in wills because the law has determined that certain wording produces specific legal results. However, this practice can sometimes lead to strange and unintended outcomes when lawyers rely on precedents without fully considering whether the language is understandable or appropriate.

Common Will Clauses

Let’s look at the structure of a will and explain, in plain language, some common clauses and what they mean. Most wills follow a simple structure and contain some or all of the following clauses:

• Identification
• Revocation

Identification

The will must identify you. You should know whose will you are reading. Without proper identification and a statement that the document is intended to be a will, it could simply be a letter with no legal effect.

Historically, a will dealt only with personal property, while a testament dealt with the transfer of real estate. Over time, these concepts merged into the familiar phrase:
“This is my Last Will and Testament.”

There is no magic in the words, “I, being of sound mind and body, make this my last will.” These words do not have to appear in your will. However, the document must clearly be testamentary (to take effect upon death) in nature. Otherwise, ordinary expressions of affection could be mistaken for testamentary intentions. For example, a love letter stating, “I will give all that I own in return for your love,” does not create a valid will unless there is testamentary intent, whether holograph or otherwise.

Revocation

A will should specify whether it is cancelling or supplementing a previous will. If it supplements an existing will, it is called a codicil. A codicil is simply an amendment to a will. A person may have more than one will, provided the documents do not conflict. Individuals with assets in multiple countries often require separate wills to address the legal and tax rules of each jurisdiction.

Clients frequently want to prepare a new will but hesitate to request the original from their previous lawyer. Fortunately, a properly drafted revocation clause generally solves this problem. The new will automatically revokes all prior wills upon signing.

Estate Trustee or Executor?

In my next post, I’ll explain the difference to you and Janet.

Need help? Contact my office.

The post Explaining Common Will Clauses appeared first on Edward Olkovich Law.

1. A change in your relationships

This could be due to estrangement, disability, changes in health or someone disclosing an addiction. It can also include factors such as a birth or death of persons named in the will including your executors, separation, divorce or persons relocating out of your jurisdiction. Remember, in Canada, you can have more than one spouse. You could be married, separated and or in a common-law relationship and have new legal obligations.

2. A substantial change in your net worth

This could be due to a retirement, job loss or a change in market conditions. Perhaps you started a business, purchased foreign assets or received an inheritance. Did anyone win the lottery?

3. Changes in the law or tax rules

Consider tax savings or changes in the law that came into effect since your documents were signed. This does not include changes because your children are no longer minors. If you start a business of any kind, you require an estate review and perhaps a purchase of life insurance to protect creditors and young family members. If you moved to another province, have your wills examined by a local estate lawyer to ensure your estate plan and will not create stress for your executors and beneficiaries. For example, you have a Québec will but have relocated to British Columbia. Having an up-to-date will can reduce your stress and lower administration costs.

What can you do about these three signs?

Remember that not every lawyer can advise you about estate planning and provide legal advice about wills.

Book Your Discovery Meeting

Do you have questions about making your will? I have helped clients since 1978 plan their estates to protect their loved ones. I wrote the book called, Estate to the Heart: How to Plan Wills and Estates for Your Loved Ones. Contact my office today.

I can offer you a discovery meeting to discuss your needs by Zoom or in-person in my Toronto west-end office. Request your no-obligation discovery 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 3 Signs Your Will or Estate Plan Is Outdated (and What You Can Do About It) appeared first on Edward Olkovich Law.

Keep your will updated for changes in your relationships or assets and note how your wishes have changed.

If will formalities are not complied with, your will can be declared invalid. Judges can refuse to declare wills valid if they are prepared in suspicious circumstances. This can freeze your estate in court. Will disputes can drag relatives into court with lawyers and increase costs and delays for years.

Online will service providers only provide guidance but not legal advice. They do not go to court with you to defend your out-of-date will. Don’t expect AI to defend your will.

Do you have minor beneficiaries? Update your will to provide for their guardians and decisionmakers. Do you need trusts to manage their inheritance?

What if you have a business? Consider if you need a separate will to deal with your business assets. This can also reduce provincial estate taxes.

Who confirms the formalities when you sign legal documents online? Who can prove there are no suspicious circumstances or undue influence when you prepared your wills without a lawyer?

You may feel that preparing a will online is adequate. However, online wills are really do-it-yourself wills and may give you a false sense of security. What you print and sign may not be valid.

Remember that wills are legal documents that judges can declare invalid for numerous reasons.

You may need advice to decide who is your executor or a backup executor, and your attorneys named under powers of attorney.

Ask yourself what happens if the will that you make it is not valid. If you miss any one of the legal formalities, your loved ones may have to apply in court to have a judge determine if there is substantial compliance with the rules to treat your document as a valid will.

Invest in a professionally prepared will. Lawyers are expert witnesses in court to defend your wills. They must defend your wills in court not like online will providers or do-it-yourself wills done without any legal advice.

Step 2. Do you have designated beneficiaries for assets that allow you to name individuals?

These assets are not controlled by your will and must be payable to your estate unless you specify individuals named as designated beneficiaries. These assets include your pension, life insurance, tax-free savings account and registered investment plans.

Step 3. Do you make your assets joint to avoid losses and reduce estate taxes?

There are many dangers of joint ownership. You should not transfer anything into joint ownership without independent legal advice from your own lawyer.

Book Your Discovery Meeting

Do you have questions about making your will? I have helped clients since 1978 plan their estates to protect their loved ones. I wrote the book called, Estate to the Heart: How to Plan Wills and Estates for Your Loved Ones.

I can offer you a discovery meeting to discuss your needs by Zoom or in-person in my Toronto west-end office. Arrange your no-obligation discovery 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 Avoid These Last Will Mistakes – Use this Three-Step Checklist appeared first on Edward Olkovich Law.

Need help planning your will and estate? 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 three sons are all co-executors of my will and two live in the U.S. Will this cause problems? 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 discovery 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 Can we cut daughters from a previous marriage out of our will and leave everything to our son without risking an estate fight? appeared first on Edward Olkovich Law.

Too often people expect that making a will is a long and complicated process. They fear that this process takes more time and money than they can afford. One day when they have the time, they’ll sit down and do it right. In the meantime, can a temporary do-it-yourself online will make a difference? Anyway, how can it hurt? I’ll explain.

Estate Planning is for Your Survivors

Think about who must validate your DIY will? Can they pay a lawyer to go to court to validate the will? How much will that cost? That reminds me of the old question: how much does it cost to contest a will? Answer: How much can you afford?

Would you want to put your loved ones at risk buying cheaper wills until you can get around to doing it right? A professionally prepared will does not guarantee a will will not be contested. However, the lawyer who prepared it needs to defend it. Who can defend your DIY will?

Do-it-yourself online wills contain warnings that they do not provide legal advice. They are not suitable for all individuals. You are responsible for correctly completing any DIY will forms. Your loved ones pay the price for incomplete or any imperfectly drawn wills you prepare. They can end up in court. You don’t have to be rich for a war to start. Online will websites do not provide legal advice and are not regulated. Websites cannot testify in court to support your DIY will.

Many lawyers will tell you that their clients do come into their office and admit they purchased DIY wills. They often were disappointed because what they were looking for was advice – and a DIY fill-in-the-blank online form does not provide that. Online will websites can only provide guidance, not legal advice. They cannot provide assurance that most clients want and need about their legal options.

Jen & Ryan

Jen and Ryan, a couple in their mid-thirties, recently purchased an expensive recreational boat. Since the birth of their first child, Jen has taken parental leave, leaving the family temporarily dependent on Ryan’s income. Looking for ways to reduce expenses while updating their estate plans, they wanted to use and online DIY will service instead of hiring a lawyer. They believed this would provide adequate protection for their family in the short term. This option may have given them a false sense of security that all was protected.

The bombardment of online ads for do-it-yourself wills demonstrates a public demand for information on wills and estate planning. People may purchase online wills hoping they will find information or at least clues as to what they should be doing. Why is that? Many professionals cannot plainly speak about estate planning and wills.

For most individuals, estate planning means knowing the answers to the right questions. Their financial planners cannot provide answers to common legal questions.

Questions for Lawyers

Consider these common legal questions:

1. Wills – what terms should be included for minor children?
2. What should be included in powers of attorney?
3. What if an individual is receiving government assistance, is spendthrift, disadvantaged or bankrupt?
4. How do you make sure your business is protected?
5. What can be done legally to reduce probate costs?
6. How can the vacation property/cottage be divided equally?

Don’t accept a DIY will as a good temporary measure. Book your discovery meeting to learn your legal options and obtain estate legal advice.

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

I can offer you a discovery meeting to discuss your needs by Zoom or in-person in my Toronto west-end office. Arrange your no-obligation discovery 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 Are Online DIY Wills Temporary Solutions or Not? appeared first on Edward Olkovich Law.

Edward Olkovich was recently featured on an episode of the 3 Questions with Wayne Baxter podcast discussing 3 Questions Canadians Should Ask When Reviewing Their Estate Plan.

Do you have questions about your estate plan? 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 Edward Olkovich Featured on the 3 Questions Podcast appeared first on Edward Olkovich Law.

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.