It is clear from the statute that expenses properly incurred in carrying out the trust should be paid directly from the trust property.[1. See section 23.1 of the Trustee Act, R.S.O. 1990, c. T.23 Expenses of trustees 23.1 (1) A trustee who is of the opinion that an expense…
When an application, including an application for guardianship of an incapable person’s care and property, is brought, there are several steps that need to be taken before the application can be heard and decided by a judge. These steps include filing of application materials, cross-examinations, potentially mediation, the appointment of a neutral lawyer to protect the interests of the person whose capacity is in issue, and preparation of written arguments. Motions may also need to be brought along the way to compel production of documents, stop inappropriate conduct, etc. These steps can be time consuming.
Can a person sever a joint tenancy and thereby disentitle a spouse from receiving half of the matrimonial home by right of survivorship? The answer is maybe. The starting point for our discussion is Part II of the Family Law Act (“FLA”).
Mediating estate disputes often involves determining who gets proceeds from the deceased’s registered retirement savings plan or registered retirement income fund (“RRSP/RRIF”), and who pays the taxes on that RRSP/RRIF. A key factor during the negotiations at mediation is how a judge would decide this issue were the matter to come before a court. In other words, what does the law say?
Usually, lawyers who draft wills for their clients also prepare a power of attorney for property and personal care. These documents allow the client to choose who makes financial decisions or personal care decisions should the client become incapable. The person whose property is being managed and who signs the power of attorney is called the grantor. The person who is appointed to manage the property or make decisions about personal care (referred to, respectively, as the attorney for property or attorney for personal care) sometimes only sees the document after the grantor becomes incapable. Problems often arise because the attorney does not know what the responsibilities and duties are. If only the document came with an instruction booklet.
After someone passes away, the estate trustee will often apply for a certificate of appointment of estate trustee. While it is not technically mandatory to apply for the certificate of appointment in order to administer the estate, it is often a practical requirement in order to deal with certain types of assets. Applying for the certificate triggers the requirement to pay estate administration tax on the assets of the Estate. Even where it will be practically necessary for the estate trustee to apply for the certificate in order to administer the estate, there are certain ways you can structure your affairs to minimize the estate administration tax that will be payable.
There is a curious quirk in the Substitute Decisions Act: while the Act explicitly permits a guardian of property appointed under a Power of Attorney for Property to take compensation for their services, there is no equivalent provision permitting Guardians of the Person appointed under a Power of Attorney for Personal Care to take compensation. An obvious question therefore arises: are guardians of the person entitled to take compensation for their services? And if so, how much?
The administration of the estate can take time and often the assets and liabilities will be known and the amount available for distribution can be estimated. Accordingly, personal representatives will oftentimes make an interim distribution from the estate to the beneficiaries leaving a holdback amount to cover any anticipated liabilities and expenses. In some cases, the personal representative’s estimates can be incorrect or there’s a liability that the personal representative failed to take into account. Meaning, the personal representative may have mistakenly made an overpayment to the beneficiaries.
A civil action can be ended by the plaintiff by filing a notice of discontinuance. An applicant can end an application by filing a notice of abandonment. The steps can be taken by a plaintiff or applicant at any time. However, anyone who has been served with the claim or application, and who has responded to it, can ask the court to award them costs as compensation for the costs they incurred in responding to the proceeding.
An application to remove an estate trustee is often brought when there is significant acrimony in the administration of an estate stemming from the actions, perceived or real, of the trustee. However, if the named trustee is willing to give up the position on consent, simply substituting a different trustee can often reduce tensions and avoid costly litigation. Renunciation is “[t]he formal act whereby an executor entitled to a grant of probate (or person having the right to a grant of administration) renounces such right”.
There have been developments in recent cases that impact the question of how best to safeguard the choices of people of faith with respect to “end of life” decision-making. The purpose of this blog is to review those cases and provide some insight about how best to ensure faith-based wishes are respected and followed by medical professionals, tribunals and the Court.
An application for a certificate of appointment of an estate trustee with a Will (i.e. a probate application) ought to be accompanied by the Original Will. What happens if the original of a Will cannot be found after the death of the Testator?