7 Estate Planning Tips for Spouses
1. Make a Will
If you die without a will, the provincial government decides how your assets will be distributed under intestacy rules.
Many people incorrectly assume that if they die without a will their estate would pass to their spouse. This is not necessarily the case. In Ontario, for a spouse to inherit from your estate they must be married to you [common law spouses do not automatically inherit under intestacy rules!].
If you have children, your spouse will receive a “preferential share” up to $200,000 worth of your assets. The remainder of your estate will be divided as follows:
- If you have one child, your child and spouse will split the remainder.
- If you have more than one child, your spouse receives one third, and your children will split two thirds equally.
Making a valid will prevent the intestacy laws above from taking effect as well as providing additional benefits.
2. Update Your Will Regularly
They say the only thing worse than dying without a will is dying with an outdated will.
If any of the following have occurred since your last will we highly recommend you consider updating your will:
- birth of new child;
- birth of grandchildren;
- beneficiaries may be irresponsible with money and may require funds to be held in a trust;
- death of your named executor or inability of that executor to serve.
3. Consider Making a Secondary Will to Lower Probate Taxes
Probate taxes paid to the Government in Ontario are among the highest in Canada.
Since the landmark case of Granovsky v. Ontario was decided in 1998, lawyers have been recommending that certain clients consider making a secondary will which deals with assets that do not need to be probated (such as shares in a corporation or an art collection). The end goal of the secondary will may result in substantial minimization of probate taxes.
What is probate?
In Ontario, many executors are required to go through a legal process where the court confirms the validity of the will and the executors’ authority to act on behalf of the estate, this is known as probate. This process is usually required where the deceased owned real estate or bank accounts with substantial amounts of funds.
When a will is probated, probate taxes (also known as Estate Administration Fees) are triggered for the assets dealt with in the Will.
4. Make a Power of Attorney for Personal Care
A Power of Attorney for Personal Care is a legal document in which you designate the person or people who will make personal care and treatment decisions for you if you become incapable. This document can be used to ensure that your wishes about personal care decisions will be respected
5. Make a Continuing Power of Attorney for Property
A Continuing Power of Attorney for Property is a legal document in which you can designate a person or people to act on your behalf with respect to your property and financial affairs.
If you become unable to make decisions about your property and you have not made a Power of Attorney for Property, it is difficult for your family to access your assets and manage them for your benefit. Instead, someone must apply to the court for permission to be your representative or a guardian must be appointed by the Office of the Public Guardian and Trustee
6. Consider Transferring Title in Your Home into “Joint Tenants with Right of Survivorship”
Your home can be held by two or more people in two ways: either as joint tenants or tenants in common.
Joint tenants implies an automatic right of survivorship. For example if A dies, A’s 50% interest automatically passes through right of survivorship to B.
Tenants in common implies that each tenant owns a separate undivided interest in the property. For example if A dies, a 50% interest falls into A’s estate and will be dealt with according to A’s will or by the laws of intestacy, if A does not have a will.
If your home is held as Joint Tenants with Right of Survivorship, the home may not be subject to your Will and may pass outside of your estate. Thus your estate may not have to pay probate tax on the value of your home.
A transfer of title should only be considered after consulting with a knowledgeable lawyer and it is not appropriate in every situation. Don’t try this at home (pardon the pun!).
7. Consider Designating a Beneficiary for Specific Assets
A person can designate a beneficiary to receive the benefit of certain assets upon death (eg life insurance policies, RRSP, pension plans, TFSAs). When the person who designated a beneficiary dies, the benefits flowing from that asset will flow directly to the person named outside the deceased’s estate (and not pass through the estate). Therefore, since the asset does not flow through the estate it may not be subject to probate taxes and creditor’s claims. Another considerable advantage is that your beneficiaries will have nearly immediate access to funds following your passing.
For further information about estate planning or to schedule a consultation please contact:
THIS BLOG IS NOT INTENDED AS LEGAL ADVICE. READERS ARE CAUTIONED NOT TO ACT ON INFORMATION PROVIDED WITHOUT SEEKING LEGAL ADVICE.