Financial disclosure refers to the information provided by parties to a domestic contract that sets out their income, assets, debts, liabilities and expenses.
We're Hiring !!
Carson Law is actively searching for a full-time Junior Financial Clerk to assist with tasks associated with the financial responsibilities required to complete real estate transactions as well as daily operations. This is the perfect job for anyone looking to enter a rapidly growing firm and continue building their knowledge base.
Intestate Succession
Without a Will, one dies in intestate, meaning that there are no instructions on how to deal with their estate. In cases where individuals die in intestate, the Ontario Succession Law Reform Act governs how the assets are distributed to surviving relatives. Within this article are guidelines for how those assets will be distributed.
Multiple Wills
Ontario Executor Checklist
Our firm has years of experience working with executors and completing the tasks listed above. We understand that administering an estate can be time-consuming, complicated, and require the executor’s full attention, which is why we are happy to offer our services in this area to ensure you can focus on the grieving process.
Probate 📝
In the province of Ontario, the only individual that is legally permitted to oversee the distribution of one’s estate is referred to as the “estate trustee”. The vast majority of Wills in Ontario go through the procedure of probate, with the exception of Wills where the entirety of the estate is held jointly, typically between a husband and wife. When an estate is held jointly the surviving spouse would absorb the interests of the deceased spouse, this allows the estate to steer clear of the probate process.
Estate Considerations for RRSP and RRIF
One of the best gifts you can leave your family after you pass away is a well thought out estate plan that can minimize tax obligations. Often, Registered Retirement Saving Plans (RRSP) and Registered Retirement Income Fund (RRIF) make up a large portion of an estate, which is why concern regarding these accounts is important when developing an estate plan.
Locating a Missing Beneficiary
Administering an estate is often a straightforward process. Once an individual has passed away, the named executor has a duty to distribute the deceased’s estate according to the terms of their Will. This includes, but is not limited to identifying and locating the beneficiaries who are set to receive an inheritance. However, what happens when the executor is unable to locate a beneficiary?
Estate Trustee Roles and Responsibilities
Power of Attorney Disputes
Amending Your Last Will and Testament
Family Law Litigation Process - Part 1
Trust in Real Estate Services Act
Separation Agreements and the Transfer of Matrimonial Property
Author: Warren Gilmore - Law Student
Edited By: Ryan Carson
When a couple decides to separate, one of the primary concerns involve what is to come of the matrimonial home. Several options exist at this point. For one, the parties may elect to have the matrimonial home sold, and to then have the sale proceeds divided according to agreed upon allotments outlined in a separation agreement. Alternatively, one party may elect to purchase the other party’s interest in the property. This process involves transferring the title of the home solely into the name of the party purchasing the interest of the other. Whichever route a separating couple elect to take, it will be outlined in detail in a binding separation agreement.
A separation agreement is a legal document that works to outline the terms of a separation between the parties. More specifically, the agreement will typically outline the couple’s shared assets and debts, and describe how they are to be divided between the parties upon separation. In this context, the separation agreement should also outline what the parties have agreed will happen to the material property. Many of these agreements will provide for a buyout option, where party A will buy party B out of their interest in the matrimonial property. Having a binding separation agreement in place is the first step of this process.
Once a separation agreement has been executed by the parties, both should then look to retain their own real estate lawyers to deal with transferring the title of the matrimonial property. One of the main reasons that each party is required to retain their own independent real estate lawyer is so that each party receives independent legal advice pursuant to their own unique interest in the title transfer. Each party’s lawyer will work to explain to their client the legal consequences of executing the transfer of title. The interest of each respective party depends on which side of the transfer they find themselves on.
The party being bought out of the property will work closely with their lawyer to ensure they receive prompt payment of the buyout amount outlined in the agreement proper to signing over their interest in the matrimonial property.
Conversely, the party who will have the property transferred solely into their name will work with their lawyer to ensure that they properly provide the buyout amount in exchange for sole title to the property, along with other accompanying documentation. This additional documentation will state that the other party has indeed received independent legal advice and fully understands the consequences of executing the agreement at hand.
Regardless of which side of this process you find yourself, it is important to retain the services of an experienced real estate lawyer. Your lawyer will ensure that the agreement is followed meticulously, and advise you of the various ramifications resulting from the execution of the agreement.
Articles written by Warren Gilmore:
Estate Planning for Reconstructed Families
Sale of Canadian Property by a Non-Resident
The Prudent Real Estate Investors Checklist Alternative Approaches To Purchasing A Recreational Property Power of Attorney General Overview Power of Attorney General Overview - Continued Non-Resident Speculation Tax
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
Estate Planning for Reconstructed Families
Author: Warren Gilmore - Law Student
Edited By: Ryan Carson
The dynamic of the modern Canadian family continues to change. An increasing number of Canadians find themselves entering into second marriages or common law relationships. In many instances, these subsequent relationships involve individuals coming together with children from prior marriages, or having children within these new relationships. These blended family dynamics tend to complicate matters as far as estate planning goes, making it essential to have a properly constructed plan in place.
For starters, upon entering into a subsequent marriage any preexisting Will you may already have in place will become null and void. Unless of course this Will specifically accounts for such an event. Further, in the instance of divorce, your ex-spouse can no longer legally be deemed a beneficiary or an executor of your Will. However, the remaining provisions of the Will, unrelated to your spouse and the divorce will remain legally valid and intact. Further, if you have any subsequent domestic agreements currently in place, such as a cohabitation agreement, a separation agreement, or a marriage contract, any provisions included in these agreements will trump any conflicting aspects of a previously executed Will, should the documents ever conflict.
When constructing a new estate plan with a blended family it is important to take into consideration the concerns outlined above. Additionally, putting together an effective estate plan for this family dynamic has its own set of unique considerations. First, each partner in the new relationship should take time to consider what individuals would be considered their own individual financial dependents. This would include any children from previous relationships that either partner plans to bring into this newly blended family. Second, it is important to consider the nature of any property you may currently own. Specifically, how is title to property held, jointly, solely? This will determine how any future interests to said properties will be outlined in the Will. Third, will it be your intention to have your Will and its directive be in sync with that of your new partner? Or do you want it to be unique to your own individual wishes? This is something that is often over looked by individuals in this situation. If you wish for your Will to depart from the wishes of your partner it becomes necessary that each of you retain your own independent lawyer. This will ensure that each of your intentions are accurately and legally reflected in your own individual estate plan.
Whichever route you elect to take, it is always prudent to retain the services of an experienced estate lawyer. Their expertise will allow them to make sure that your wishes are documented in a manner that is accurate, and more importantly enforceable. Having this type of an experienced professional in your corner becomes even more critical when dealing with the complexities involved in a reconstructed family.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
Power of Attorney General Overview - Continued
Author: Warren Gilmore - Law Student
Edited By: Ryan Carson
Power of Attorney for Property
This specific type of Power of Attorney works to provide your appointed attorney with the power to conduct your financial affairs. This includes your interests in both real and personal property in the event that you become mentally incapable, and unable to conduct these affairs yourself.
The reach of this document can be as expansive as you wish, but typically they are constructed to provide your designated attorneys with the necessary authority to manage your financial affairs. Such as, paying bills, managing your investment portfolio, or the buying and selling of property.
A particular level of mental capacity is required in order to create a legally enforceable Power of Attorney for Property.
First, you are required to know what property you currently hold, as well as its estimated value.
Second, you must understand your responsibilities to your financial dependents.
Third, you must be aware of what specific authority you are delegating to your appointed individuals.
Fourth, you must understand that your attorney is obligated to account for all decisions made in regards to your property.
Fifth, you must understand that you have the right to revoke your power of attorney at any time, so long as you are mentally capable.
Sixth, you must understand the potential consequences that could result due to mismanagement of your property at the hands of your attorney.
Last, you must understand the unfortunate possibility that your attorney may abuse their authority.
Power of Attorney for Personal Care
Conversely, A Power of Attorney for Personal Care involves the designation of authority to make decisions surrounding medical treatment, health care, safety, food, and other matters of a similarly intimate nature. This document allows you to outline in advance what your future care will look like by placing the power to make these important decisions in the hands of someone you trust to carry out matters in your best interest. This document provides you and your loved ones with the peace of mind that your personal interests will be looked after should you no longer be able to adhere to them yourself.
A particular level of mental capacity is required in order to create a legally enforceable Power of Attorney for Personal Care.
First, you must be able understand whether or not the individual you have appointed to be your attorney truly has your best interest at heart.
Second, you must understand that your appointed attorney may very well be required to make important decisions of your behalf.
A Power of Attorney for Personal Care can only be acted upon in the event that you become mentally incapable of making decisions on your own. Typically, it is left up to the judgement of your appointed attorney to determine whether or not you are mentally capable. However, if an impending decision is one involving medical or long-term care, it is up to a medical professional to determine whether or not you are mentally capable of making such a decision before your attorney will be legally permitted to act.
At Carson Law we are dedicated to helping our clients put together the appropriate set of Power of Attorney documents tailored to fit your unique set of needs.
To read Warren’s corresponding article on Power of Attorney General Overview, click here.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
Estate Planning: A How To Guide
Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
Developing an estate plan can be difficult, as it requires you to plan for life after you have passed away. However, dying without such a plan may cause confusion and complications. Creating an estate plan is important if you want to have your property divided and distributed according to your wishes and there are a number of steps that you can take to ensure this.
Will
The first and arguably most important step in estate planning is to make a will. A will is a document that takes effect after you pass away and can include ‘things’ such as the distribution of your assets, custody of minor children and burial/funeral instructions.
If you die without a will, the law deems that you have died intestate, meaning you have not left any instructions as to how you wish your property ‘is’ to be divided and distributed. Without a will, the Ontario Succession Law Reform Act will determine who your beneficiaries are and how your property will be divided, resulting in a potential loss of control.
Specifically, having a will is important for unmarried couples or couples who have remarried. Unmarried cohabiting couples are not afforded the same rights as married couples in regards to division of property. Therefore, if one unmarried party in a common law relationship wishes to leave property to the surviving spouse, it is best to include this in a will.
Also included in a will can be a chosen executor. This individual will be responsible for settling your estate after death. Executor duties include but are not limited to, arranging a funeral, securing and appraising the assets of the deceased, paying any debts or taxes of the deceased and distributing the assets according to the will. In addition to appointing a primary executor, you may choose an alternative executor who will assume responsibility in the event the primary executor passes away or becomes ill and cannot fulfil executor duties.
Power of Attorney
A power of attorney may be the next document to complete in your estate planning. A power of attorney is a document in which you give someone the right to make decisions for you in the event something were to happen and you are not able to look after on your own.1
There are two types of Power of Attorney: Power of Attorney for Personal Care and Power of Attorney for Property. The former is someone who will be named to make decisions about your health, housing, and other personal aspects in the event you become mentally incapable of making these decisions.
In contrast, a Power of Attorney for Property will be someone who you choose to make decisions about your financial affairs.2 Every individual has the freedom to choose a Power of Attorney, but it must be made free from any undue influence by the attorney or third party.
You are free to choose more than one Power of Attorney, but when two or more attorneys are chosen, they must agree on a decision unless your Power of Attorney says they can make decisions jointly and severally. When you decide your Power of Attorney, you may choose a substitute attorney the event that your original attorney cannot or will not fulfil their duties.
A power of attorney may be the next document to complete in your estate planning. A power of attorney is a document in which you give someone the right to make decisions for you in the event something were to happen and you are not able to look after on your own.1
There are two types of Power of Attorney: Power of Attorney for Personal Care and Power of Attorney for Property. The former is someone who will be named to make decisions about your health, housing, and other personal aspects in the event you become mentally incapable of making these decisions.
In contrast, a Power of Attorney for Property will be someone who you choose to make decisions about your financial affairs.2 Every individual has the freedom to choose a Power of Attorney, but it must be made free from any undue influence by the attorney or third party.
You are free to choose more than one Power of Attorney, but when two or more attorneys are chosen, they must agree on a decision unless your Power of Attorney says they can make decisions jointly and severally. When you decide your Power of Attorney, you may choose a substitute attorney the event that your original attorney cannot or will not fulfil their duties.
Trusts
In developing your estate plan, you may choose to set up a trust for your family that takes effect during your lifetime or upon your death. A trust is created when one party transfers ownership of their assets to a trustee, who in turn holds and distributes those assets to the beneficiaries, according to the owner’s instructions. Setting up a trust may be advantageous for those who have minor children, where in the event the children are left with no living parents, the trust can provide an income to the minors and pay out the capital when they reach a specific age. Every trust is individual to the person who creates it, and is another way to ensure your family will be taken care of when you are no longer living.
A family member’s passing can become a stressful and confusing time for the surviving family members, especially if left without a will, Power of Attorney, or a trust in place. This is why estate planning is imperative. At Carson Law, we are here to help guide you through each step in your personalized estate plan. From creating a will specifically tailored to your wishes and preparing documents for your chosen Power of Attorney, our team will be there. Our Firm’s extensive knowledge of estate planning will enable us to set up, maintain and execute your family trust according to your instructions as well as provide professional trustee and executor services to ensure that your wishes are fulfilled as requested.
Articles written by Stacey Staios:
Should you consider a cohabitation agreement? What is wrongful dismissal?
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
References
1Ontario Ministry of the Attorney General; attorneygeneral.jus.gov.on.ca
2Ontario Ministry of the Attorney General
.
Should You Consider A Cohabitation Agreement?
Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
A cohabitation agreement is an agreement signed by two unmarried individuals who are living together or intend to live together in the future. When a couple decides to live together, a cohabitation agreement can clearly set out the rights and obligations of each party, either in the event of a breakdown of the relationship or upon the passing of one of the partners.
There are many benefits to entering into a cohabitation agreement, regardless of whether the parties intend to marry or remain in a common law relationship. For the purpose of support obligations, common law couples are defined in Ontario as couples who have lived together continuously for no less than three years, or one year if they are in a relationship of some permanence and have a child together.1
When it comes to the division of property, there is a distinction between the rights available to common law couples and married couples. If one party in a common law relationship passes away without a will, the surviving common law partner does not have an automatic right to their spouse’s property under the Family Law Act like a married couple would, regardless of the length of their relationship or cohabitation. Rather, they must have the courts determine their share via a claim in equity under a constructive trust, which can be overwhelming, costly and time consuming.
Couples who decide to enter into a cohabitation agreement can ‘bypass’ these legal limitations and set out specifically what property they wish to leave behind to the surviving common law spouse. In the event of a breakdown of the relationship, the parties can, using a cohabitation agreement, contract out of any right or obligation that would otherwise take place without an agreement, including spousal support and the division of property.
Couples who decide to enter into a cohabitation agreement can ‘bypass’ these legal limitations and set out specifically what property they wish to leave behind to the surviving common law spouse. In the event of a breakdown of the relationship, the parties can, using a cohabitation agreement, contract out of any right or obligation that would otherwise take place without an agreement, including spousal support and the division of property.
For some, entering into a cohabitation agreement under section 53(1) of the Family Law Act may be advantageous, particularly if there is a significant disparity in the parties income, assets or debts. Such agreements can keep these assets separate and have the couple remain financially independent. In the event that the couple decides to marry at a later date, a cohabitation agreement can transition into a marriage contract under section 53(2) of the Family Law Act. 2
When it comes to rights and obligations that both parties wish to contract out of using a cohabitation agreement, section 56 of the Family Law Act is applicable. This section states that a domestic contract, relating to the custody of or access to the child may be set aside and disregarded by the court if, in the opinion of the court, the contract is not in the best interest of the child.3 Further, section 56(4) of the Act states that a domestic contract may also be set aside if (a) a party failed to disclose any significant assets, debts or liabilities, or (b) if a party did not understand the nature or consequence of the domestic contract. Therefore, contingent on the parties satisfying these requirements, their domestic contract will stand in court.
Given that there is no statutory right to the division of property among common law couples, a cohabitation agreement may be entered into by those who wish to remain unmarried and have a division of property regime. It is important to have a qualified and experienced lawyer draft an agreement of this nature, as there are many factors and variables that can affect its validity. Whether you are inquiring about a cohabitation agreement, require one to be drafted, or need it to be reviewed by a lawyer, our team is here to help. At Carson Law our lawyers have many years of experience helping families in Burlington, Ontario and its surrounding areas create these domestic contracts in a cost effective and practical way.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
References
1 Ontario Family Law Act, s.29.
2 Ontario Family Law Act, s.53(2)
3Ontario Family Law Act, s.56
.
Powers of Attorney and Substitute Decision Making during COVID-19
With all that surrounds COVID-19, we may have started to consider what is important to us and what would happen if we were to suddenly become seriously ill.
With the current restrictions on travel and social gatherings, you may need to re-evaluate if your chosen attorney is best suited for the job. This person should be capable of quickly communicating, getting informed, asking questions and providing consent where necessary as well as know ahead of time what choices you would like to make.
Perhaps ask yourself the following1:
• Is that person immune-compromised?
• Is that person in quarantine or otherwise vulnerable?
• Will this person be able to safely and effectively perform the necessary functions?
• If you have more than one attorney for unanimous decision-making, is this still achievable?
• If your attorney is a front-line worker, can they still be available when the time comes?
If all else, you should appoint an alternate-decision maker in the event that your attorney becomes incapable or unwilling to act. If neither of these are appointed, to have your money, property and personal care looked after, a next of kin will need to bring a guardianship application before the Court.1In a normal world, this process is timely and costly. In the world we are currently living in, this could be difficult to execute with all Courts closed and only accepting urgent matters and select applications.
Reminder: For the duration of COVID-19, powers of attorney must be witnessed by two witnesses, but the signing can be done by way of audio-visual communication, with the donor signing remotely and the two witnesses watching and signing by video call. For the remote signing, one of the witnesses must be a lawyer or licensed paralegal.
With the current restrictions on travel and social gatherings, you may need to re-evaluate if your chosen attorney is best suited for the job. This person should be capable of quickly communicating, getting informed, asking questions and providing consent where necessary as well as know ahead of time what choices you would like to make.
Perhaps ask yourself the following1:
• Is that person immune-compromised?
• Is that person in quarantine or otherwise vulnerable?
• Will this person be able to safely and effectively perform the necessary functions?
• If you have more than one attorney for unanimous decision-making, is this still achievable?
• If your attorney is a front-line worker, can they still be available when the time comes?
If all else, you should appoint an alternate-decision maker in the event that your attorney becomes incapable or unwilling to act. If neither of these are appointed, to have your money, property and personal care looked after, a next of kin will need to bring a guardianship application before the Court.1In a normal world, this process is timely and costly. In the world we are currently living in, this could be difficult to execute with all Courts closed and only accepting urgent matters and select applications.
Reminder: For the duration of COVID-19, powers of attorney must be witnessed by two witnesses, but the signing can be done by way of audio-visual communication, with the donor signing remotely and the two witnesses watching and signing by video call. For the remote signing, one of the witnesses must be a lawyer or licensed paralegal.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
References
1Morris, S. (2020, April 21). COVID-19 Updates for your Business. Retrieved May 1, 2020, from https://www.mindengross.com/resources/news-events/2020/04/21/substitute-decision-making-during-covid-19-why-you-need-(or-may-need-to-update)-your-power-of-attorney
Amendment to Wills and Powers of Attorney Requirements
On April 23, 2020, the Ontario Government amended an order under s. 7.0.2(4), of the Emergency Management and Civil Protection Act allowing wills and powers of attorney to be witnessed and signed virtually.
First revision is that for both wills and powers of attorney, at least one witness must be a licensee within the meaning of the Law Society Act. The Law Society understands that the Ontario government means this to be an Ontario-licensed lawyer or paralegal at the time of signing.
Second, for wills executed and witnessed virtually, the testator may sign and witnesses may subscribe on separate copies of the will, in counterpart. Likewise, donors and witnesses to powers of attorney for property or personal care that are executed and witnessed virtually may sign on separate copies of the power of attorney, in counterpart.
These changes will remain in place for the duration of Ontario being under a State of Emergency. You can view the order
here
For any questions or concerns, please contact our offices