When acting as a prospective estate trustee in Ontario, it is often necessary to apply to the court for a certificate of appointment of estate trustee. Although it is commonly referred to as “probate”, the certificate of appointment is essentially a validation of a will or, in a scenario where no will exists, an authorization for the estate trustee to manage and distribute the estate of a deceased person.
This certificate may be required in circumstances where the deceased owned real estate or held assets in accounts for which various offices and institutions require the court’s validation. In fact, most financial institutions or land registry offices want to be certain of the appointment in order to avoid being wrapped up in any litigation in the event that money or assets are transferred to the wrong parties.
The application for probate also involves the payment of estate administration tax, or as commonly known as “probate tax” under the Estate Administration Tax Act. The amount payable for this tax depends on the size of the estate and the current tax rates are as follows:
- For an estate valued less than $1,000, there will be no probate tax payable.
- For an estate valued up to $50,000, the rate is $5 for each $1000 or part thereof.
- For an estate valued at over $50,000, the rate is $250 (for the first $50,000) plus $15 for each $1000 or part thereof.
For example, an estate with a value of $240,000 will be required to pay $3,100 in estimated estate administration tax. A larger estate of $1,000,000 will attract $14,500 in estate administration tax.
For estate administration tax calculations, the total value of the deceased’s estate may include assets such as:
- Bank accounts
- Investments (bonds, trust units, stocks, etc.)
- Vehicles and vessels
- Real estate in Ontario (net of encumbrances such as mortgages)
- Insurance proceeds (where proceeds pass through the estate)
- All other property including business interests, goods, intangibles, etc.
There are some assets which flow outside the estate such as those which are held jointly or, pass by way of beneficiary designations. When considering estate planning, a number of steps may be taken to reduce probate fees payable. However, some of these options present other risks which need to be carefully assessed.
Along with the above, there are very onerous requirements placed on an estate trustee to not only manage and distribute the estate, but also to file a detailed estate information return to the Ministry of Finance within 90 days of obtaining probate. It is important to consult a professional to help you with estate planning or, administration services, to ensure you limit your exposure to potential liability. Should you require any assistance or, other estate related services, we would be glad to assist you.
Please note the above serves as general information and not legal advice and is not intended to be relied on as such.Read More
What is the Estate?
When a person passes away, all assets that the individual leaves behind may be referred to as that person’s “estate”. Generally, this could include bank accounts, investments, cash, jewelry, cars, business interests and the like. Sometimes the deceased owns a fractional interest in the asset (such as a part of a company) in which case, the fraction would also be considered a part of their estate.
Upon passing of such individual, the main question that arises is whether there exists a Will or not. In the event that the deceased had a Last Will and Testament, the terms of the Will must be reviewed in order to determine, along with various other items, who would manage the estate and who are the intended beneficiaries.
In the event that there is no Will, Ontario law known as the Succession Law Reform Act sets out the rules and priorities in order to determine who can be a beneficiary of the estate.
During the estate administration process, the Estate Trustee often retains a Lawyer to assist with the process. It is to be noted that there exists a clear distinction between the role of the Lawyer and the Estate Trustee as it is the Estate Trustee who is responsible for decision-making related to the estate, even where a Lawyer has been retained for assistance.
Other things that need to be considered and are often discussed during the initial stages (in no particular order) of the administration are:
- Whether there are particular “wishes” in the Will related to the funeral and or organ donations?
- Are there any U.S. tax consequences as of death (where the deceased had U.S. assets and or citizenship or other connection).
- Consider if there may be any support obligations (stepchildren)?
- Are there non-resident beneficiaries?
- Do other documents (separation or shareholders agreements or orders) exist that need to be reviewed?
- Gather details of the assets including, but not limited to, RRSPs, RRIFs, GICs, Tax returns, insurance policies etc.
- Provide notice of death to family members or others who have an interest in the estate (such as those who have a business interest).
- Identify the deceased’s advisors such as lawyer, accountant, financial planner, who may possess important information.
- Consider and advise of any conflicts (beneficiary disputes; sibling rivalry) that exist with respect to the estate and the terms of the Will.
- Understand and be aware of the entitlements under the Family Law Act along with the limitation period.
- Understand what the role of the Estate Trustee involves, the commitment, the liability that exists along with a complete understanding of their duties and responsibilities prior to acting.
- Realize that prior to acting, an individual may be able to renounce his or her office prior to taking action in relation to the estate.
- Understand the level of diligence required and the need for record-keeping and accounting with respect to the estate.
- Secure and preserve assets including insuring over assets depending on the situation.
- In light of recent case law, consider whether there any joint assets that give rise to a resulting trust?
- Locate and obtain listing of safety deposit boxes.
- Understand the particulars of what constitutes a Graduated Rate Estate.
- Consider whether there are any potential dependent claims that could arise under the Succession Law Reform Act
- Consider whether there are beneficiaries that may be missing and need to be located?
- If necessary, understand the priority that arises under the Succession Law Reform Act for an intestate estate (without a Will).
- Gain access to information about the liabilities of the estate and arrange for payments.
- Close accounts, cards, and advise the appropriate parties and institutions of death.
- Consider whether certain assets need to be insured over.
- Understand that accounting, investment and tax advisors may also need to be retained.
- Know details and amount of the “probate” tax payable
- Be aware of the estate information return requirements of the estate – due within 90 days of issuance of the Certificate of Appointment of Estate Trustee
And many more…
There are various scenarios and steps that may arise as a consequence of death. The estate administration process is a complex process involving an understanding of the role of an Estate Trustee as well as the limitations and liability that are associated. Please be sure to contact an estate lawyer to gain a better understanding in relation to your particular situation.
The above serves as general information and is not intended to be thorough in nature and is not to be relied upon as legal advice.Read More
In Ontario, simply being separated from your spouse and not obtaining legal divorce may put your estate plan in jeopardy. Section 17(2) of the Succession Law Reform Act (“SLRA”) provides that for parties that have obtained legal divorce, any reference to a former spouse in an individual’s will is revoked and the will is construed as if the former spouse had predeceased the testator (party preparing the will). This is helpful due to the simple fact that after divorce, there is clearly a shift in interests and priorities and the law protects you in this regard. However, unlike the provision protecting those who obtain a divorce, there is no similar provision in a situation where spouses are just separated. That being said, it is a common misconception to believe that if you are separated, your ex-spouse will not inherit anything.
In fact, where spouses are separated (assuming no update to the will) and one party passes away, the surviving spouse maintains his or her entitlement under the will. The result is not much different if there was no will to begin with – the separated spouse may still qualify under the definition of a “spouse” under the intestacy rules.
A simple example may serve to bring the point home: if you have separated from your spouse (and not obtained a divorce) and own property jointly, the property may pass to the former spouse automatically. A visit to the lawyer’s office can prevent this from happening so that your portion of the property passes on to whom you intend. This may be to provide for your children, your siblings or even your new common-law partner.
Along with preparing or revising an existing will, upon separation, one must ensure they update their insurance policies, registered plans, and any pensions. Further, unless you want your separated spouse to be able to make your property and personal care decisions, you must attend to preparation of your power of attorney documents as well.
Since separation can drag on for some time, individuals need to ensure they take a close look at their assets and related estate documents to avoid unintended consequences.
The above serves as general information only and is not to be relied on as legal advice. Please contact your lawyer for your specific circumstances.Read More