15 - Planning To Pass On The Estate Flashcards
How intestate is divided
Surviving married spouse preferential share $200k plus proportional share of balance
If one child, half if 2 a third
3 basic forms of wills
Conventional
Holograph, all hand written - no writing by anyone but testator
Notarial, in Quebec
Definition of gift mortis causa
Death bed gift
3 conditions required for gifts mortis causa
Made in contemplation of death, not necessarily expectation
Delivered to recipient without encumbrances
Only complete upon death
Investment discretion clause in will
Flexibility in investment changes
Discretionary encroachment class in will
Allows executor discretion to use assets for benefit of a minor beneficiary until they reach majority.
Life interest in specific asset clause in will
I.e. life interest spouse can use asset or get income until death then goes to kids.
Guardian appointment clause in will
Allows guardians to also manage minors property
Tax election clause in will
Allows executor to make tax elections when advantageous
Family law considerations for will
Depending on jurisdiction, division of net family property y will or family law act
- Ontario, surviving spouse has right to file spousal election within 6 months. Executors duty to make spouse aware of right
Transfer of registered assets clause in will
Regarding transfer of registered assets as tax benefit. I.e. rollover to spouse or dependent child
Survivorship clause in will
Common to avoid probate twice, I.e. spouse must be alive for 30 days to inherit
Rule with holograph codicil
Must all be written in testator handwriting no others
Rule with conventional codicil
Must have 2 witnesses
Rules in Quebec are
Civil code
Rules in ontario are
Common law
2 main restrictions when writing will. 2
Cannot cut out next of kin and financially dependent
Must provide minimum to spouse
Spousal election
In Ontario, spouse can decide to go through family law instead of will
Dependent relief claim
Financially dependent family member applies to courts for ruling of continued support from estate
If executor dies in common law provinces
If no alternate, then the executors executor automatically becomes the executor
If executor dies in civil law province
If no alternative, testers heirs assume position
If executors don’t agree what happen in common and civil law
Common, majority rules
Civil, must be unanimous unless stated in will
Typical executor compensation
5%
Executor fees if funds held in trust
Two fifths of 1%
Effect of marriage on will in common law provinces
Revocation
If will made before marriage, this must be specified for it to continually
Effect of marriage on will in Quebec
Valid will drafted before marriage remains but estate must go through patrimony rules before distributing
Effects of divorce on a will
Does not revoke a will but benefits to spouse are canceled ( bequest, legacies, appointments)
Divorce is federal so this is all provinces
Effects of separation on will
Remains in effect
How is debt reported when reporting assets for probate
No deduction is made for debt other than mortgage on personal property
Is probate the same across provinces
No
Quebec is flat fee
Ontario probate fees
$5 per $1,000 for 1st $50k. Calculate $50k x $5 / $1k
1.5% in excess of $50 ($15;per $1,000)
Does a will have to be probate in Quebec
Only if done in holograph
- liquidator has to search records to see if they have the most recent will
Who is the donee in a POA
The POA
3 types of POA in Ontario
Continuing
Non continuing- not valid if incapacitated I.e. for times your away
Personal care POA
Name of POA in Quebec
Mandate
