Chapter 6: Legal Fundamentals Flashcards
1
Q
Which system of law are the provinces and territories (except Quebec) governed by?
A
Common law
2
Q
Which system of law is Quebec governed by?
A
Civil law
3
Q
How did the common law system come to be?
A
Judges in the early part of the last millennium would travel the countryside meting out judgements. It became common practice for these judges to rule based on a principle commonly held in many jurisdictions. This then became the common law system.
4
Q
What types of law are enforced other than common law?
A
Administrative/regulatory law
Statutory law
5
Q
What is another term for common law?
A
Case law or precedent law
6
Q
How is administrative or regulatory law created?
A
Created by appointed officials who have had authority delegated to them by the elected government. Entities such as provincial insurance councils, privacy commissioners, and provincial securities commissions typically have some authority to create and enforce regulatory law.
7
Q
What is statutory law and how is it created?
A
Created to address some specific issue. These laws are drafted and passed by elected officials.
8
Q
What are the challenges with statutory law?
A
Legislators have to strike a balance between coming up with laws that are easily read and understood, but specific enough to be enforced.
9
Q
What happens in situations where an event does not fit clearly within the (statutory) law as it is written?
A
It is left to the courts to determine how the law will be enforced. If there are gaps in the legislation, the courts are left to refer to the common law.
10
Q
How does a civil law system differ from a common law system?
A
The facts of each case are reviewed on their own merits. Precedent is less of a concern, although the courts typically do refer to prior cases when making decisions.
11
Q
Which act provided the basis for determining jurisdiction when discussing the law?
A
The Constitution Act of 1867. Sections 91 and 92 delineate responsibility for various matters to either the federal govt (section 91) or provincial govts (section 92).
12
Q
What are the different courts in Canada (7)?
A
- Superior court
- Probate court
- Family law court
- Provincial appeals court
- Tax court
- Federal court of appeal
- Supreme court
13
Q
What is the Superior Court?
A
Provincial superior courts deal with most civil issues. These courts also handle serious criminal matters. If a lawsuit is for an amount lower than a certain threshold, it will be dealt with at small claims court.
14
Q
What is another commonly used term for superior court?
A
Court of queen’s bench
15
Q
What is the jurisdiction of the tax court of Canada (TCC) and why?
A
Federal court (because most tax disputes are federal). Even when tax disputes are provincial, they are normally held at the federal TCC.
16
Q
Which types of cases does the Supreme Court of Canada hear?
A
Appeals of cases of their choosing and cases concerning the Constitution.
17
Q
What are the (3) parties involved in a case before the courts?
A
Plaintiff - brings a case before the courts
Defendant - the party from whom the plaintiff is seeking damages or restitution
Appellant - either the plaintiff or defendant might become an appellant by appealing to the Court of Appeal or Supreme Court of Canada (when unhappy with a decision).
18
Q
What is a tort?
A
A tort arises when one person sues another for a loss to that person’s wealth, property, person, privacy, or dignity.
19
Q
How can you differentiate a tort from a criminal act?
A
A criminal act is a crime against society while a tort is an act which causes harm to another person.
20
Q
What three things must the plaintiff demonstrate in order to establish negligence (and therefore liability)?
A
The defendant owed the plaintiff a duty of care.
The defendant breached that duty of care.
The defendant’s conduct caused injury to the plaintiff.
21
Q
What are the two more stringent standards for duty of care?
A
Professional duty or suitability standard - in cases where a person seeks advice from a professional, that person expects service in excess of a traditional duty of care.
Fiduciary duty or Best Interests standard - highest standard to which a person can be held in the eyes of the law.
22
Q
Which standard of care are financial planners generally held to?
A
Professional Duty or Suitability Standard.
23
Q
What is one of the biggest challenges with a fiduciary relationship?
A
The test for a fiduciary is often performed in hindsight.
24
Q
When does a fiduciary duty arise?
A
The fiduciary has scope for the exercise of some discretion or power, the fiduciary can unilaterally exercise that power so as to affect the beneficiary’s legal or practical interests, the beneficiary is particularly vulnerable or at the mercy to the fiduciary.
25
Which duty does the FP Canada's Standards of Professional Responsibility impose on FPs?
Duty of Loyalty, middle ground between suitability standard and fiduciary standard.
26
Which criteria must be met in order for a contract to be considered valid?
There must be an offer, acceptance, and consideration. There must be intention to enter the contract and the parties involved in the contract must have had the capacity to do so. The contract must also be legal.
27
What is it called when one party offers to do something for another party for no consideration? Is this enforceable as a contract?
Gratuitous promise. Not enforceable as a contract.
28
How can a contract be created with no consideration?
A seal must be used to bind the contract. This is held to be something only done after serious thought, which is why no consideration is required.
29
Does a bankrupt person have the capacity to enter contracts?
There is diminished capacity, but there may be some allowance to continue to enter into contracts. Generally, a trustee in bankruptcy will oversee the bankrupt's situation, including contractual responsibilities.
30
When do Indigenous Persons not have the capacity to enter a contract?
Certain dispositions of property (when the property is on a reserve) must be first approved by the Minister of Indigenous and Northern Affairs, therefore their capacity to enter such a contract is limited.
31
What is a frequent reason for contracts to be declared illegal?
Contracts that restrict trade.
32
How is impeaching a contract different than voiding a contract?
Impeaching a contract does not necessarily mean that the whole contract will be voided. In many cases, impeachment leads the courts and the parties involved to find some other way to allow the contract to be carried out.
33
What happens if the parties entering a contract later discover that it is voidable?
The parties must decide if they'll void the contract, or the contract will no longer be voidable.
34
What are grounds for impeachment of a contract?
- Mistake
- Misrepresentation
- Undue influence
- Duress
35
What is misrepresentation in a contract?
A party to a contract provides incorrect information about a material fact. Fraud or negligence may be the cause of misrepresentation, in which case, the courts may also punish the perpetrator.
36
What are the methods of discharging a contract?
1. Performance - each party performs its obligations under the contract and the contract runs its course.
2. Agreement - parties may discharge a contract by agreement if not able to carried out as originally intended.
3. Frustration - a party is unable to fulfill its terms of the contract because of some outside force. In this case, the contract may be discharged and any losses shared by both parties.
4. Operation of law - best example is with contracts being discharged due to bankruptcy.
37
How do new common law rules deal with frustrated contracts?
Under former common law rules, one party would be fully responsible for any losses. Under modern legislation, any losses would be shared between parties.
38
What is the most important distinction between contract law and family law?
Contract law is private, family law is public. As well, under family law, much consideration is given to those who might not otherwise be able to care for themselves. Under contract law, parties are generally perceived to be on equal footing.
39
Is marriage a provincial or federal responsibility?
Federal. Under the Federal Marriage Act.
40
What is the solemnization of marriage and whose responsibility is it?
Performance of a formal marriage ceremony before witnesses. Provincial responsibility.
41
How does Alberta's common-law legislation differ from other provinces?
Alberta's legislation is the Adult Interdependent Relationships Act. Couples are known as adult interdependent partners, rather than common law partners and there is even the possibility that roommates who have lived together for 3+ years could be considered adult interdependent partners.
42
What happens if a separated couple cannot come to an agreement on a separation agreement?
They may petition the courts, although the courts encourage the use of alternative dispute resolution processes such as mediation.
43
How does collaborative family law differ from mediation?
Much like mediation, separation agreements are handled out of court. The former couple sits with their lawyers and the four of them work to a solution. It is largely informal and all matters are laid out during meetings. The cost tend to be lower than using the courts.
44
What are 2 examples of situations where a legally married estranged spouse might have rights that supersede any rights of a new common law partner?
Pension legislation and group benefits insurance.
45
What does a couple need in order to obtain a divorce?
Marital breakdown, which must be evidenced by a one-year period of separation or evidence of adultery or cruelty.
46
What would prove a marital breakdown?
One-year separation period, or evidence of adultery or cruelty.
47
What are corollary issues?
Issues of support, division of assets, and care, custody, and access to any children.
48
What do custody and access refer to?
Custody refers to the place where any children reside. Access typically refers to access by the non-custodial parent.
49
What does sole custody refer to for the purpose of calculating support payments?
A child will be spending 60% or more of their time with one parent.
50
What is the most common type of custody arrangement?
Shared custody.
51
What is split custody and how is it different from shared custody?
Under a shared custody arrangement, children split their time with their parents approximately equally. Under a split custody arrangement, one or more children will live with one parent while the others live with the other parent.
52
When would a split custody arrangement occur?
If the children are older (teens), and their separated parents will be living in different cities.
53
What is the term "joint custody" used to refer to?
Used to indicate that each parent has equal responsibility for raising the children. Issues like schooling, religion, medical decisions etc., are joint responsibilities of each parent.
54
What did the 1997 child support legislation institute as a guideline for child support payments?
A couple should allocate approximately 20% of gross income to one child and 32% to two children.
55
What income level does the child support guidelines not cover?
Annual income greater than $150,000.
56
When would support payments be based on economic potential rather than actual income?
In situations where the courts believe that a support payor or recipient may be hiding income or deliberately reducing their income-earning potential.
57
How do you calculate child support payments in a split custody situation?
The situation of the higher-income parent is accounted for first. Then the lower-income parent's situation is drawn from the guidelines. Based on those amounts, the higher income parent pays the difference to the lower income parent.
58
How are child support payments treated for tax purposes?
Not deductible for the payor and not reported as income for the recipients (as of 1997).
59
Which custody scenario is the most complex for calculating child support?
Shared custody.
60
How do you determine child support in a simple sole custody situation?
The Government of Canada guidelines are used to determine the flat benefit that is to be paid based on the non-custodial parent's income, province of residence, and number of children.
61
To what age are child support payments made?
Age varies based on province of residence. Can be anywhere between 16 and 19, normally continuing to age 23 if a child continues into post-secondary studies.
62
What happens with child support payments for a child with a disability?
Payments may never end.
63
In what situations might a spouse apply for changes to an existing child support order?
- Extraordinary expenses such as unusual medical/dental, extracurricular activities, day care.
- Undue hardship. If a parent can show that the amount paid or received created undue hardship, an application can be made to change the agreement.
- Changes in income such as due to job loss or other substantial change in income.
64
In which way is spousal support less rigid than child support?
2008 federal spousal support guidelines are only intended to be used as a general set of guiding principles, unlike child support guidelines.
65
What are some of the most important factors that must be accounted for when calculating spousal support?
Length of the marriage, incomes of both partners, whether child support is being paid, any unusual expenses.
66
How is spousal support treated for tax purposes?
Taxable in the hands of the recipient and deductible for the payor.
67
Are former common-law couples eligible for spousal support?
Yes.
68
Are spousal support payments only made on divorce?
Can be made on divorce or separation.
69
What occurs to spousal support payments being made without a court order or written agreement?
Payments are assumed, for tax purposes, to be child support, and not spousal support.
70
Which recent legislative changes help ensure former spouses receive spousal support they've been awarded?
Payment can be registered with the provincial maintenance supports program which may allow for a deduction at source from an employee's paycheque or a garnishee of wages or business income may be possible (depending on province).
The federal government will seize funds from a tax refund, employment insurance, CPP, OAS, and federal pensions.
71
Do common-law couples have an entitlement to division of matrimonial property?
No, although may be allowed in cases where the common law partner without legal title were able to demonstrate that they had contributed to the value of that property.
72
Which provinces have introduced limited provisions for the division of matrimonial property at the termination of common law relationships?
Alberta, BC, Manitoba, Nova Scotia, Saskatchewan, Nunavut, North-West Territories.
73
Which property is not usually considered matrimonial property (for division of assets purposes)?
Property brought into the marriage by only one spouse. Inheritances, life insurance proceeds, injury awards. Business assets with proof that those assets were exclusively of one spouse's own creation.
74
How would a pension be split during separation or divorce for a younger couple compared to a couple close to retirement?
For a younger couple, the pension would likely be calculated as part of the split of marital assets. For a couple closer to retirement, the pension benefits may be paid to each spouse in proportion to their split of matrimonial assets.
75
What is a domestic contract?
Prenuptial agreement in Canada.
76
Which items are normally addressed in a domestic contract?
- Division of property
- Spousal support
- Child care
- Testamentary wishes
- Gifts and inheritances
77
When might the courts overturn spousal support arrangements from a domestic contract?
If circumstances have changed since the original agreement was made.
78
Why would a couple want to include a section in a domestic contract that enforces some sort of gift to a surviving spouse at death?
Because a will can be changed without the knowledge of a spouse, but a domestic contract cannot be changed and will normally override a will, regardless of when the will was created.
79
What are the two types of domestic contracts that can be entered into?
```
Marriage contract (often referred to as a prenuptial agreement).
Cohabitation agreement.
```
80
Are cohabitation agreements permitted in all provinces?
No
81
What is a cohabitation agreement and how can it be voided?
Like a marriage contract for couples who are not married. Generally voided if the couple gets married.
82
What is the most common negotiable instrument used today?
A cheque
83
What is the term used for the assignment of rights associated with a negotiable instrument (such as assigning the cheque to another party?)
Endorsement
84
What is a promissory note?
A note created by a maker who promises to pay a payee at a stated point in time. Payment terms are generally quite flexible.
85
Who frequently uses promissory notes in Canada?
Small businesses.
86
How are promissory notes typically used?
Provided for security of a loan, used as part of share purchase agreements, sometimes used in family estate and tax planning scenarios.
87
How do ownership and possession differ?
Ownership refers to the person who holds the title on a piece of property. Possession simply refers to who is in possession of a piece of property.
88
What is beneficial ownership?
The person who owns a property owns it for their own interest.
89
What is ownership in trust?
The party who holds the title/deed to property does not own that property for their own interest. They are holding it for another party.
90
Can property held in trust be claimed by creditors of the trustee?
The trustee is the owner of property in trust. As long as the owner has not behaved in such a way that it might appear that the property is beneficially owned, than it should not be claimed by creditors. Creditors often seek to demonstrate that a person who is an owner in trust is actually a beneficial owner, making the property in trust accessible by the creditors.
91
When a property is jointly owned and no distinction has been made, what is it assumed to be?
Tenancy in Common
92
What does tenancy in common mean?
The owners (there can be more than 2) each have ownership in the property. The ownership does not need to be in equal proportions but each owner must have equal access to and use of the property.
93
What is the term for the right of equal access and use?
Unity of Possession
94
How does Matrimonial property legislation affect the tenancy in common right for each owner (spouse) to freely negotiate their interest in their property (sell a matrimonial home)?
Generally prevents spouses from selling their interest in a family home without their spouse's consent, regardless of whether the property is jointly or individually owned.
95
What happens at the death of a tenant in common?
The person's interest in the property becomes part of their estate and can be willed to whomever they wish. The other owner(s) have no ability to influence how the tenant in common disposes of their interest in the property.
96
What is the main difference between tenancy in common and joint with right of survivorship?
Tenants in common have no rights of survivorship. Each party must have an equal interest in the property. Each party's interest must have arose at the same time.
97
What are the 4 unities of JTWROS?
Unity of possession - all parties must have equal access and equal right to sell their interest in the property
Unity of title - cannot be preferential ownership for one owner over the other
Unity of interest - each party's interest must be equal in form, even if not equal in proportion. All parties have to have the same kind of ownership with the same rights to use adn dispose of the property.
Unity of time - each party's interest in the property must have arose at the same time.
98
What happens to a property held JTWROS at death of one party?
On the death of a joint owner, their interest passes to the other joint owners in equal proportions. This is done INDEPENDENTLY of any will or other testamentary instrument.
99
Is there probate when a party holding a property JTWROS dies?
No. The property passes on to other joint owners equally with no regard for the individual's will and no probate.
100
Are there taxes involved with naming a person JWTROS on a property?
There is a taxable disposition at the time of naming a joint owner. There is no probate at the death of an owner.
101
What happens in this situation:
Ken and Bart buy a rental property together as tenants in common. They are brothers, and both are married. Ken predeceases Bart.
On his death, his interest in the property will pass onto whomever is named on his will. Bart will now be a Tenant in Common with that person(s).
102
What does the basic concept of insolvency rely on?
Either a person or the person's creditors indicating they cannot meet obligations.
103
How does insolvency differ from bankruptcy and consumer proposals?
Insolvency is a financial position, not a legal one.
104
Which act defines bankruptcy?
The Bankruptcy and Insolvency Act.
105
Is the Bankruptcy and Insolvency Act a federal or provincial one?
Legislation is federal, but there are provincial differences. Each province has its own rules about what assets might be exempt from bankruptcy proceedings.
106
Who is typically appointed the trustee under the terms of a bankruptcy?
A provincially-appointed entity, often an accountant who specializes in such matters.
107
Who does the trustee of a bankruptcy work for and what is their role?
They basically work for the creditors and it's their responsibility to make sure all creditors get the fullest amount that they can get.
108
What occurs during the first step of declaring bankruptcy?
The bankrupt person consults with a trustee. Many consultations do not result in a declaration of bankruptcy. Instead, other alternatives are often used such as the trustee negotiating payment terms with a creditor.
109
What happens to secured property during the process of bankruptcy?
The secured creditors (such as the mortgagee) have priority over unsecured creditors and any property promised to them is generally kept out of bankruptcy proceedings.
110
What happens to assets available during the bankruptcy process?
All assets are gathered by the trustee and are now owned by the trustee. The trustee sells whatever is available or transfers assets to creditors. Net proceeds are used to settle whatever obligations were in place and the obligations will be forgiven.
111
How long does a bankruptcy last for?
9 months, or 21 months in the case of higher net worth individuals or repeat offenders.
112
What can a bankrupt person not do during a period of bankruptcy?
Cannot enter into most types of contracts, cannot be a director of a corp, generally cannot act as trustee, cannot work in most jobs that require the handling of money.
113
How does the trustee in a bankruptcy get paid?
During the period of bankruptcy, the bankrupt may have to pay what is called a surplus income to the trustee. A portion of household income above a certain threshold (basically cost of living) is forfeit.
114
What happens to a bankrupt person's spouse?
The spouse's income is potentially forfeit along with the bankrupt. Joint bankruptcy will often be recommended if a couple lives joint financial lives.
115
How long is a bankruptcy reflected on a credit score?
6 years or more in certain situations.
116
Which obligations are not discharged during bankruptcy?
Spousal and child support.
Court-ordered awards for damages.
Student loans in the first 7 years after graduating.
Debt related to a fraud.
Most secured debts (mortgages and car loans), however, the creditor may still call the loan.
117
What happens if a secured creditor calls a loan during the bankruptcy process?
The asset must be sold and the proceeds used to settle the debt. Any remaining proceeds would presumably be used to help settle the consequences of the bankruptcy (except in certain situations).
118
Which assets will a bankrupt be allowed to keep during bankruptcy proceedings?
Some equity in a house, usually between $10-50K.
Tools of the trade up to about $10K.
Clothing (not including expenses clothing/jewellery)
Furniture and personal effects (not including those of significant value).
A vehicle up to a certain value (about $5K).
RRSP and pension assets, given that assets have been in an RRSP for more than a year and no large deposits were made in the 5 years prior to bankruptcy.
Cash surrender value of a life insurance policy and seg funds (given that a non-arms length person is named as beneficiary).
119
How is a consumer proposal different than a bankruptcy?
The debtor does not have the harsh legal restrictions associated with a bankruptcy but still usually deal with equally harsh financial restrictions. The debtor, through a trustee, will negotiate a debt repayment schedule.
Does not impact the ability to enter into contracts or handle money professionally. May also be able to continue to act as a trustee or director.
120
How long is a typical debt repayment schedule under a consumer proposal?
Typically 2-5 years.
121
What do creditors do during a consumer proposal and how is a consumer proposal better than a bankruptcy for creditors?
Will take a reduced payment of principal and will freeze all interest. Creditors will get more than they would likely get in a bankruptcy.
122
How long does a consumer proposal usually impact a credit score?
Usually for 3 years.
123
Which type of responsibility (provincial or federal) is succession law?
A provincial responsibility
124
What is the name for the person creating a will?
The testator (or testatrix, female)
125
What can be considered a testamentary instrument?
Any document that indicates the disposition of property on death, such as a will.
126
What are mirror wills?
Couples' wills will make the same provisions for property to flow to the other spouse.
127
What is the difference between mutual wills and mirror wills?
Mutual wills are a stricter form of mirror wills. A couple writes wills that both provide for the same beneficiary designations. Then, on the death of the first spouse, the surviving spouse's will must remain in such a way that it will carry out the testamentary wishes originally established in the mutual wills.
128
Who can witness a will?
Anyone 18+ who is not a beneficiary of the will as either the will or gifts to the beneficiary may be made void.
129
What is a holograph will?
One in which the entire will is entirely written in the hand of the testator.
130
Who signs a will to make it valid?
The testator and 2 witnesses (or 1 in some provinces).
131
What does the ademption of a gift mean? When might this occur?
A gift that is adeemed simply means that the intended beneficiary gets nothing.
This could occur if the testator left a specific gift with specific instructions in their will, then disposed of the specific property prior to their death and making any amendments to the will. (Such as leaving their 2012 Ford Edge to someone, then selling it prior to their death).
132
Which type of gift is much less likely to be redeemed?
Residual gifts.
133
What are residual interests?
An example of this would be: “I leave my cottage and Registered Retirement Income Fund to my spouse; the rest of my property shall be divided equally among my three children.” In this case, the gift of the RRIF and cottage is a specific gift, and the gifts to the kids are residual gifts.
134
What occurs if a testator indicates in their will that they would like property to be divided equally among three children, then one child predeceases the testator?
The gift is not adeemed, instead, it is said to lapse. The gift passes on to the heirs of that deceased child, creating a gift over.
135
What is a per stirpes gift?
If someone named in a will predeceases the testator, the gift passes on to their survivors.
136
What is a per capita gift?
If someone named in a will predeceases the testator, the gift is split among the heirs of the beneficiary who predeceased the testator. Example: if 3 children are listed and 1 predeceases the testator and they have 2 children, the total gift would be split into 4 (rather than 3) and the 2 grandchildren would each receive 1/4 of the total gift, rather than split 1/3.
137
What is the executor of a will liable for?
For any funds paid from the estate before a release has been issued by the CRA and the Probate Court has indicated that the estate has been concluded properly.
138
What must an executor do for creditors?
Must advertise for creditors to ensure all possible creditors have an opportunity to have their debts paid.
139
Is it common for an executor to pay amounts of the estate before a clearance certificate is received?
Yes. In practice this is normal as it can take months or years for all the administration to be complete and beneficiaries often need their funds sooner.
140
Why is it best (for an executor) for funds to be in the hands of beneficiaries?
Executor has a fiduciary responsibility for handling funds in the estate properly.
141
How much is an executor normally paid?
Normally between 3-5% of the total value of the estate.
142
What occurs if someone dies with more debt than assets?
Executor is responsible to sell whatever assets are available and use the funds to pay debts. Neither the executor nor beneficiaries assume responsibility for unpaid debts though. No property passes onto beneficiaries aside from life insurance, a matrimonial home, and RRSPs.
143
Who is normally named an executor?
Married couples normally name each other, unless they're older. Typically name someone younger who lives in the same province as you. Can also name multiple executors.
144
What are dependent relief claims?
Claims made by dependents who feel they have not been properly taken care of by the deceased testator.
145
When might a court vary the provisions of a will?
If a challenge is made to the will and the court has reason to believe that the intentions of the testator were other than what was written in the will, the will may be subject to variation.
146
Which 3 circumstances invalidate a will?
1. A new will is written
2. The will (all copies) is destroyed
3. The testator marries. Marriage revokes any previous wills, (although divorce does not).
147
What is a codicil?
A codicil amends a will without revoking it. Can be used for minor changes such as removing a beneficiary.
148
Which provinces allow for wills to withstand the marriage of a testator and not be revoked when the testator gets married?
Alberta and BC.
149
Which laws will determine the distribution of an estate of someone without a will?
Laws of intestacy.
150
What is the basic idea of intestacy legislation?
Ensure the spouse and children are taken care of by leaving a preferential share for the spouse and divide up the remainder between the spouse and children.
151
How much is a preferential share that is given to the spouse of an intestate person (in most provinces)?
Between $40-200K
152
What is the name for a share given after a preferential share?
Distributive share.
153
Is the distributive share paid out only to minor children?
May be minor or adult children.
154
How is the distributive share usually broken up?
Into thirds. 1/3 going to spouse and 2/3 going to children.
155
What happens to a distributive share if a deceased spouse has no children?
Whole distributive share goes to spouse.
156
What happens if a person dies intestate, a large distributive share is paid out to minor children (and held in trust) and the surviving spouse has no way of supporting themselves?
They may apply to the provincial trustee to receive funds out of the trust. However, they will likely not be able to receive much.
157
Who is next in line if a person does intestate with no spouse or children?
The parents are next in line, followed by brothers and sisters, then nieces and nephews.
158
What happens if a person dies intestate and no family can be found?
The estate is escheat, which results in the funds being transferred to an entity of the province's choosing (such as a designated post-secondary institution).
159
What happens if an intestate couple dies in a common disaster?
In some jurisdictions, the older spouse is deemed to have died first, which means that any property would flow to the younger spouse's estate. In other provinces, each spouse is deemed to have died before the other. This allows property to flow to heirs designated by each spouse separately (more like tenancy in common).
160
Who is selected as executor when an estate is intestate?
The courts will work with survivors to appoint one. Usually the spouse, but parents, children, and other relatives may be chosen as well.
161
What is letters probate?
Allows the executor to wind up the estate with certainty.
162
Which assets are exempt from probate?
Death benefits from life insurance or seg funds.
RRSPs or RRIFs.
Property owned jointly with Right of Survivorship.
Property in other provinces (most likely probatable in the province where it is located, just not in the province of death)
Certain property using multiple wills.
163
How can estate lawyers use multiple wills to bypass probate?
Although not usually successful in Ontario, can pass personal assets through a will probated regularly, then use a second will to deal with business property. The second will may or may not need to be probated.
164
How much is the probate fee in Ontario?
0 on the first $50K, 1.5% over $50K with no maximum.
165
Which provinces have no probate fees?
Quebec (uses a different system) and Manitoba as of Nov 2020.
166
What is an inter vivos transfer of property?
Transferring property during life.
