the real/estate blog


Some thoughts for the not-quite-married

Posted in Estate Planning,Intestacy by Cesia Green on July 2, 2013
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Wedding aisleIn Canada, for the most part, there is little day-to-day difference between couples who are legally married and couples who are common law. You can get benefits at work, get a family membership at the gym, and generally live as if you are married. One significant difference, however, is in matters of estates law.

If you are not legally married, you are entitled to nothing from your spouse’s estate unless you are legally married or you have signed wills. Truly: nothing. You have no inheritance rights unless you are dependent on your spouse, in which case you have to sue your spouse’s estate to receive anything. (And even then you will not get the full estate, only what you would have been entitled to if you had separated the day before your partner’s death).

Common-law couples are a group who truly need to have estate planning documents in place. Society may not care whether you have walked down an aisle, but the Ontario government certainly does.

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Your family may have changed. Has your will?

Posted in Estate Planning,Intestacy by Cesia Green on June 18, 2013
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Last week, I wrote about updating your will for your own benefit. Today, I want to talk about updating your will for the benefit of others.

Last month, Elizabeth O’Brien wrote this article on MarketWatch. She mentions a vast number of reasons why it can be disastrous to your family if you don’t keep things up-to-date, such as:

  • Stepchildren inheriting instead of biological children
  • Former spouses inheriting instead of children
  • Spouses of your children inheriting instead of grandchildren
  • Beneficiaries who are spendthrift or have addiction problems inheriting outright instead of through a trust

You owe it to yourself to keep your documents updated. You also owe it to your family.

You’re going to die. Be prepared.

Posted in Estate Planning,Intestacy by Cesia Green on May 7, 2013
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I regularly read the blog Lifehacker, which is basically a collection of tips for making life easier. A few weeks ago, I came across this article on what you need to do now to prepare for death.

As the author observes, none of us likes to think about death. It will come to us all eventually, though, and some planning now will make it easier on everyone, including you, in the long run. Some of the information is very specific to American residents, but it is a great read if you are starting to think about what you need to do.

Where do you keep your estate plan?

Posted in Estate Planning,Intestacy by Cesia Green on April 30, 2013
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Having a properlSafey drafted will and powers of attorney is important. Making sure that your executor and/or beneficiaries know where they are? Almost equally important.

Probably at least every other week, every lawyer who is a member of the Simcoe County Law Association receives an email sent via our law librarian from an estate lawyer or a next of kin, asking if anyone has a will for someone who has recently died. These people may have made a will, or may not have, but if they did, no one knows where it is.

Remember: if no one can find your will, it’s basically the same as not having one at all.

Do you want Prince Charles to inherit your estate?

Posted in Estate Planning,Intestacy by Cesia Green on January 8, 2013
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Here’s a reason to have a will if you live in Cornwall: there, if you die without a will, your entire estate goes to the Prince of Wales. No joke: in the last six years, he has received over one million pounds from intestate estates. Get a will. Now.

Protect your assets – and your body

Posted in Estate Planning,Funeral planning,Intestacy by Cesia Green on September 25, 2012

It’s a very poorly known fact, but in Ontario, your executor becomes the owner of your body at the moment of your death.

Morbid, yes. But that is how it is here.

I speak to so many people who don’t see the need to have their wills done because they don’t have anything, or because everything is joint, or because they just don’t see any urgency to something that won’t affect them for decades. If protecting your assets from taxes, inappropriate relatives, or minor children isn’t enough, think about Sherman Hemsley: the actor and star of The Jeffersons died in July and still isn’t buried because of a fight over his estate.

Choosing the proper executor also means a say in how – and when – you are buried.

Predatory marriages

Posted in Capacity,Estate Planning,Intestacy by Cesia Green on December 6, 2011
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There is a very well-known case in Ontario called Banton v. Banton. In that case, an elderly man married a waitress in his long-term care facility and subsequently redid his will, cutting out his children from his first marriage and leaving his new wife his entire (substantial) estate. When the children challenged the will, it was found to be invalid because he had no capacity to make a new will, but because he had married, he had revoked the old will, and so his new wife still inherited a significant amount of the estate.

There is a requirement in Ontario that a person signing a will must have what is called testamentary capacity, that is, the ability to understand what he or she owns in terms of assets and who he or she owes obligations to (spouse, children, other dependants, etc.). However, there is no requirement that a person have any particular level of capacity to marry. Marriage in Ontario automatically revokes a will, and so “predatory marriages” have the potential to throw very careful estate plans into complete disarray.

Unfortunately, this situation still happens. There are many estates lawyers who believe that there should be a capacity requirement for marriage, considering how deeply it can affect an estate plan, but until this happens all we can do is be vigilant.

Snakes on an intestacy

Posted in Estate Planning,Intestacy by Cesia Green on May 24, 2011

Garry Wise over at the Wise Law Blog  posted last week about a very strange estate: that of an informal zookeeper, Karel Fortyn, who ran a reptile zoo out of his home in Welland, ON. When he died suddenly on May 2, he left behind a former common law spouse, a fiancee, a brother…and no will. Because of the number of endangered and dangerous snakes involved, government officials are also involved. There are also crocodiles.

Having a valid, properly drafted will in place is important for all of us. Whenever anything in your life deviates from what would be considered “normal” – even if that doesn’t include pit vipers and boa constrictors – getting around to doing a will is even more vital.

You can read the CBC News article here.