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  • ESTATE PLANNING
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  • WILL - ESTATE - POWER OF ATTORNEY

Estate Planning

Our firm has experience in assisting Estate Trustees with the administration of Estates, whether complex or simple. Sometimes the duties of being an Estate Trustee (Executor) can be overwhelming and when guidance and direction is required we can provide it. Whether there is a total or partial delegation of the responsibilities, we can assist the executor in discharging the onerous duties that follow with the position. Estates can be complex to administer and there are numerous taxation issues that need to be addressed in a timely manner and we have experience in dealing with these matters. Over the years, we have passed numerous estate accounts before the Ontario courts and have assisted many clients with the administration of the estates at the appropriate time. Maintaining estate records as required by the courts involve skill and we can assist the trustee to the extent required by the client. We have a good working relationship with accountants who have expertise in the area of estate administration and we can help the trustee coordinate an effective administration.

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How to Prepare an Application for Certificate of Appointment for an Estate Trustee with a Will

(LSO Guidelines)

Gather what you will need for the application

  • Original will
  • Original codicil(s), if any
  • Documentary proof of death
  • List of all of the deceased’s assets with respective values
  • The following forms under the Rules of Civil Procedure:
    1. Form 74.08, Affidavit of Execution of Will
    2. Form 74.08, Affidavit(s) of Execution of Codicil(s), if one or more codicils exist
    3. Form 74.04, Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant) (see also: Forms 74.04.1 and 74.05.1)
    4. Form 74.07: Notice of an Application for a Certificate of Appointment of Estate Trustee with a Will
    5. Form 74.06: Affidavit of Service of Notice
    6. Form 74.13: Certificate of Appointment of Estate Trustee with a Will
  • (See the link to the Rules of Civil Procedure Forms and a sample Form 74.04, Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant), in the Resources section of this How-To Brief.)
  • The following legislation:
    1. Estate Administration Tax Act, 1998
    2. Estates Act
    3. Rules of Civil Procedure

Determine if a certificate of appointment of estate trustee is necessary

  • It is typically necessary to apply for the certificate of appointment where
    1. the estate is large and the assets are not (i) readily transferable, or (ii) transferable outside probate
    2. there is real property, or
    3. a financial institution requires the certificate
  • If a certificate is not required, most institutions will request that the beneficiary complete an indemnification prior to transferring the property.

Prepare the necessary documents to complete the application

  • Complete the following documents:
    1. Form 74.04, Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant)
    2. Form 74.07, Notice of an Application for a Certificate of Appointment of Estate Trustee with a Will
    3. Form 74.13, Certificate of Appointment of Estate Trustee with a Will
  • The applicant is the prospective estate trustee. He or she must state his or her name, address and occupation in the application. The application also includes information regarding the deceased, including the name, last address, occupation, date of birth, date of death and date of the last will and/or any codicils to that will. The application should state the value of all personal property worldwide and real property in Ontario (net of encumbrances); that the deceased was of full legal age or, if not of full legal age, the deceased met the requirements permitting a valid will to be created; and whether the deceased was married after the will was executed. The original will should be attached to the application as an exhibit, and the estate trustee must swear, by affidavit, that the contents of the application are true.  Documentary proof of death must also be filed as part of the application.  (Make notarial copies of all original documents prior to submitting the application.)
  • A renunciation (Form 74.11) is required from any named estate trustee who chooses not to apply, despite being named in the will.
  • If the applicant is not named as the estate trustee in the will, the beneficiaries who together have a majority interest in the value of the estate at the date of death must sign a consent to the appointment of the applicant.

Serve the appropriate parties with the appropriate documents

  • Notice of the application and a copy of the will and any codicils must be served on all persons entitled to share in the distribution of the estate, including charities and contingent beneficiaries, by regular letter mail to each person’s last known address. Review rr. 74.04(2) and 74.04(7). An affidavit of service of the notice must be filed with the application in court.
  • Strictly speaking, it is not necessary to serve a copy of the entire will on beneficiaries who are only receiving cash bequests or gifts of specified items. Only the relevant portion of the will that defines the beneficiary’s respective bequest need be served with the application. According to Form 74.6, it is not necessary to serve a copy of the entire will on beneficiaries who are only receiving cash bequests or gifts of specified items.  Only relevant portion of the will that defines the beneficiaries respective bequest need be served with the application.  However, in some circumstances, it may be prudent to provide the entire copy of the will.

Serving minors

  • Notice to minors shall be served on a parent or guardian and must be served on the Children’s Lawyer. See rule 74.04(4). Notice to a minor does not need to be served on the Office of the Public Guardian and Trustee.

Serving mentally incompetent beneficiaries

  • Notice to a mentally incompetent beneficiary is served on the appropriate guardian, attorney or Public Guardian and Trustee. See r. 74.04(6).

Serving unborn or unascertained persons

  • If there are unborn or unascertained persons, notice is to be served on the Children’s Lawyer. See r. 74.04(5).

Calculate the estate administration tax (formerly known as probate fees)

  • Estate administration tax is paid to the Minister of Finance. The fees are based on the value of the estate and are calculated in accordance with s. 2(6) of the Estate Administration Tax Act, 1998. The fees are calculated based on the value of the deceased’s assets in his or her name alone and does not include assets that pass outside of the estate or outside of probate. Note: amendments to the Estate Administration Tax Act 1998, received Royal Assent on May 12, 2011. There is no set date yet, as to when these amendments will come into force. Before calculating estate administration tax, applicants should ensure they are relying on the most up-to-date legislation.

Determine if an administration bond is necessary

  • An estate trustee is personally liable for failing to administer an estate properly.
  • Review r. 74.11(1) regarding the particulars associated with administration bonds.
  • In most cases, where the applicant has been appointed under the will, there is no need to post a bond during the administration of the estate. However, if the applicant is a non-resident or has not been named in the will, the estate trustee will need to post a bond, unless all beneficiaries waive the requirement and an affidavit that all debts have been paid and a draft order waiving the bond is filed.
  • Form 74.32 is the appropriate form of bond from an insurance company, and Form 74.33 is the appropriate form of bond for one or more personal sureties.
  • If a government agency or a trust company is appointed as the estate trustee, a bond is not required.

7File the necessary documents with the Estate Registrar of the Ontario Superior Court of Justice

  • The following documents must be filed with the court in the county where the deceased had his or her permanent residence:
    1. The original will
    2. The original codicil(s), if any
    3. Proof of death
    4. Form 74.08, Affidavit of Execution of Will
    5. Form 74.08, Affidavit(s) of Execution of Codicil(s), if one or more codicils exists
    6. Form 74.04, Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant)
    7. Form 74.07, Notice of an Application for a Certificate of Appointment of Estate Trustee with a Will
    8. Form 74.06, Affidavit of Service of Notice
    9. Security, in accordance with the Estates Act
    10. Probate fees, in accordance with the Estates Act
    11. Form 74.13, Certificate of Appointment of Estate Trustee with a Will
  • If the deceased lives outside of Ontario but owns property in Ontario, the application should be filed in the jurisdiction where the property is located. If property is owned in multiple jurisdictions, the application can be made in any of those jurisdictions.
  • If an affidavit of execution of the will or codicil cannot be obtained, an affidavit attesting to the circumstances of the execution of the will and the fact that the witnesses are dead or cannot be located and confirming the deceased’s signature must be filed with the application.
  • If the original will is a holograph will, an affidavit (Form 74.09) attesting to the handwriting and the signature of the deceased must also be filed with the application.
  • If the will has been altered or marked in any way, a witness to the execution of the will must swear an affidavit of condition (Form 74.10) that confirms that the will is in the same condition as it was when it was originally signed. If there are unwitnessed changes, they must be noted in the affidavit.
  • If a witness or a spouse of a witness is a beneficiary, the witness must file proof (Form 74.40) that there was no undue influence exercised against the deceased.
  • When the application for the certificate of appointment is complete and the materials required to accompany the application are complete, the registrar may issue the certificate. If the application is not complete or contains information on which the registrar has a doubt, the application shall be referred to a judge for a determination.

Glossary

  • Beneficiary/ies:
    1. Person(s) entitled to benefit under the terms of a trust or will.
    2. Person(s) or association(s) named as the recipient(s) of the proceeds of a life insurance policy or a plan or fund (e.g., RRSP, RIF, LIF, pension or annuity.). In this context, the estate of a deceased may also be a beneficiary.
  • Certificate of appointment of estate trustee: Pursuant to rr. 74–75 of the Rules of Civil Procedure, this means letters probate, letters of administration or letters of administration with will annexed.
  • Codicil: A written supplement or addition to a will that may alter or revoke provisions in the existing will. Executed by the testator, with the same formalities of a will.
  • Estate trustee: Pursuant to rr. 74–75 of the Rules of Civil Procedure, this term means an executor, administrator or administrator with will annex. “Estate trustee with a will” is an executor with will annexed. “Estate trustee without a will” means an administrator.
  • Holograph will: A will written entirely by the testator with the testator’s own hand, signed by the testator without the necessity of witnesses.
  • Probate (or letters probate): Formally the term for the procedure by which a will is accepted as valid. Letters probate of a will certify that the will was “proved” and the administration of the estate given to the executor by the Ontario Superior Court of Justice. This is now referred to as a “certificate of appointment of estate trustee.”
  • Proof of death: As of January 2016, proof of death must be filed as part of an Application for a Certificate of Appointment of Estate Trustee With or Without a Will pursuant to the Rules of Civil Procedure.  At r. 74.01, “proof of death” is defined as documentary evidence of a person’s death, such as a death certificate issued by the Registrar General or a funeral director or, alternatively, an Order made under the Declarations of Death Act, 2002, stating that the person has been declared dead.
  • Will: A testamentary instrument that must be made in writing. The Succession Law Reform Act sets out the requirements for making different types of wills, including holograph wills, military wills, wills by minors and international wills.

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Statutes and Rules

Power of Attorney

Provincial law allows you to select a person or persons to assist you with respect to medical, personal care decisions and financial decisions. If you become mentally disabled and cannot make either personal care or financial decisions on your own, the attorney you have appointed can make those decisions for you. If you do not have a power of attorney, family members may have to apply to be your guardian, which is a complex and expensive process. In other cases, the public trustee and guardian for the province of Ontario may be appointed to make those decisions for you.

Power of Attorney for personal care

This document will permit a person or persons to make medical or personal care decisions for you should you be unable to do so.

Power of Attorney for property

This document will permit a person or persons to make financial and other decisions for you at any time after you sign the document. This document will be effective should you become unable to make those decisions on your own. The selection of your attorney is very important as you must be able to trust them not to use the power of attorney improperly and to make the right decisions for you in your best interest.

Tung Law Office provides services:

  • Wills- Drafting of Will, Mirror Will, Wills for husband and wife.
  • Power of Attorney- for Personal Care and Property
  • Estate Administration
  • Creation of Trust – for the benefit of Disabled and/or Minor Children
  • Succession Plans
  • Tax planning
  • Family Gifts – to Parents, Kids and blood relations.

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Will

The most important document during your life and after your life is your Will.If you die without a Will your property will be divided among individuals according to a schedule set by the government. This may not follow your wishes and can increase the cost of administering your estate. To make sure your wishes and desires are followed regarding your property on your death you should have a Will. Also, if you die without a Will and have young children, part of your estate could go to your children and be held in trust until they reach the age of majority. This can cause problems, if you are married, for your spouse. Having a will assures that your wishes are honored and you will be protecting your spouse and children.

Validity of the Will

In order for a Will to be valid, the testator (the individual making the Will) must have the capacity to give instructions – the testator must be capable of appreciating the nature of the act of making a Will, the extent of their property, and the nature of the claims of persons who ought to receive the property. This determination is made both at the time the instructions are provided and when the Will is signed.

In addition, the Will must have been given without the presence of undue influence or duress. This exists where a person exerts a degree of pressure on the testator which results in instructions to the lawyer which does not reflect the wishes of the testator.

Finally, in order for a Will to be valid, it must be signed in accordance with the requirements of the Succession Law Reform Act. The will must be signed by the testator in the presence of two witnesses who are not beneficiaries under the Will. There are limited exceptions to these requirements, such as a holographic (handwritten) Will and Wills made by military personnel in specified circumstances.

Elements of a Will

Revocation of Previous Wills and Codicils

Although a Will is revoked by the making of a new Will, Wills commonly contain a provision which expressly revoke all prior Wills and codicils. A codicil is a document used to amend a Will.

Appointment of Executor and Trustee

In a Will the testator appoints one or more executors and trustees. An executor is the person appointed to carry out the terms of the Will. The trustee is the person appointed to act as trustee of any trusts created under the Will. More often than not, the same individual or individuals Will be appointed as both the executor and trustee. However, separate trustees may be desirable in certain circumstances. For instance, where a trust is created for the benefit of a minor, it may be desirable to appoint the person appointed as guardian of the child to also act as the trustee of the child’s estate. Alternatively, if there is a large estate, it may be desirable to appoint a trust company to act as trustee and manage the trust(s).

Bequests and Devises

A bequest or legacy is a gift of specific property given under a Will. It could include a gift of a specific amount of money or item of jewelry or other property. Generally and unless specified otherwise, a bequest is only given if the beneficiary is living. If the beneficiary predeceases the testator, the bequest is said to lapse and forms part of the residue of the estate. A devise is a gift of real property under a Will and generally also lapses where the beneficiary predeceases the testator.

It is important to note that it is generally advisable that you bequest only sentimental and significant property. If the Will packed full of bequest could result in administrative burdens and legal uncertainties, as items of property which have been be quested may be replaced over times or no longer owned at the time of death. Instead, it is common to prepare a Memorandum of Wishes or Memorandum of Direction. This is a document which is stored with your Will and which sets out how you would like your property to be distributed. It is not binding on your executor, but your Will may direct that your executor be guided by this memorandum.

Residue

The residue of an estate is the sum of the assets remaining after the debts, expenses, taxes and fees have been paid and bequests and cash legacies have been made. A Will should set out the beneficiaries who are entitled to the residue of the estate, generally divided into percentages or portions. If all or part of the residue of an estate is not distributed, this portion of the estate Will be distributed in accordance with the rules of intestacy.

Guardians of minor children

A testator may appoint a custodian for a minor child and a guardian of a minor child’s property in a Will. However, this appointment is only effective for 90 days. The custodian and guardian must make an application to the court to become a permanent custodian and guardian. Although the court Will give weight to the wishes of the parents, the court Will do what is in the best interests of the child.

Trusts

A Will may establish trusts in which legal ownership of property is given to the trustee for the benefit of others (the beneficiaries). The key element to a trust is the separation of legal and beneficial ownership in the property. The use of a trust permits the testator to give property to a beneficiary, while imposing constraints on how that person may use the property. Trusts are commonly used in estate planning for the maintenance and education of minors; for the maintenance of a spouse during their lifetime while directing to whom the trust funds Will go on the death of the spouse; for tax planning purposes; to provide for the education of grandchildren, and to safeguard and manage property left to young adults or spendthrifts.

Administrator Powers of Trustees

It is common for the Will to provide the executor and trustee with administrative powers to enable them to manage the estate. These powers commonly include the power to pay debts, sell real estate, deal with business interests, determine capital and income, lend and borrow and make income tax elections.

Changes to a Will

It is important to review your Will from time to time to ensure it is current. The following is a list of some major life changes which may necessitate a change being made to a Will:

  • Marriage, separation or divorce
  • Birth of a child or grandchild
  • Death of an executor, trustee, beneficiary, custodian or guardian
  • Significant change in assets
  • Change of residency or citizenship

Changes to a Will can be made in two ways. Minor changes can made by a codicil, a legal document which amends the Will. If major changes are required, or there have been several minor changes, it may be desirable to create a new Will.

If you would like to discuss your Will with a lawyer, feel free to contact Tung Law Office .

For further services, Wills and Estate lawyers in Brampton , Mississauga, Toronto and GTA area services and more detailed information, please contact: 
Baljinder Singh Tung, Tung Law Office: 8- 1332 Khalsa Dr., Mississauga ON L5S 0A2, at Phone 905-670-2001, Fax 905-670-2003 and email tung@tunglaw.ca

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