This area of law deals with two facts that are often considered the only two certainties of life: Death and Taxes!
In preparing your Will it is important to attempt to cover as many scenarios as possible. In making your Will you should appoint an executor who is the person responsible for carrying out the terms of the Will. In most cases you should appoint an alternate executor, who can act in case the first named executor dies before you or is, for other reasons, unable to act or continue to act as your executor, alternatively you may appoint two or more individuals or the survivor of them to act as executors. Once an executor and an alternate is selected, you must determine who is to receive your estate.
The most common situation is for a husband and wife to appoint each other their executor and leave everything to each other, provided that if they die in a mutual disaster or one has already died, their estate is to be divided among their children. If the children are under 19 or the testator wishes the children to be older before receiving their share of the estate, then a trust is created until the children reach the designated age. There are however many variations to the manner in which a Will is prepared and it is important that the Will reflect your intentions and not merely fit some pre-designed formula.
In order to make a Will a person must be competent to do so. Generally this means that he must be aware of the assets that make up his estate and the persons who may expect to benefit from the estate, such as close relatives, friends, etc. Generally lawyers are aware of the competency requirements and are careful to note the relevant factors when making a Will for a person whose competency, due to age or disability, may be questioned.
The second certainty of life, i.e. Taxes is another matter to be taken into consideration when making a Will. When a person dies in Ontario, he is deemed to have disposed of his property immediately on his death and any income tax that arises from this “deemed disposition” becomes payable within six months of death. In addition to income tax, the provincial government imposes a Probate Fee of approximately 1.4% of the value of the estate. There are many ways to minimize and/or delay these taxes, however it is important the appropriate planning take place prior to death, the sooner, the better! Many individuals have accumulated assets that may be subject to capital gains tax on their death and steps should be taken to ensure that their estate will not be required to sell property merely to pay the taxes that Will arise. A lawyer, often in combination with the client’s accountant, can often significantly reduce the amount of tax that the client’s estate will pay.
Estate planning is about life – in the present and in the future. Most importantly, estate planning is about the life of your family and loved ones and the peace of mind you get from helping to preserve their financial security.
By its very nature, estate planning is a difficult subject to discuss, even more so to plan for, because it forces us to come to terms with our own mortality. Yet it’s something you need to talk about openly with your loved ones today because you don’t do so after you are gone, or after they are gone for that matter. Each person will approach estate planning differently with personal motivations and expectations. And no estate plan will be exactly like another.
Three Rational Motivations:
- Provide adequately for family members and/or loved ones.
- Ensure that your estate is distributed in the most timely manner possible after your death.
- Minimize taxes – during your lifetime and, equally important, for the beneficiaries of your estate.
Three Emotional Motivations:
- Gain comfort from knowing your loved ones are well looked after.
- Feel secure knowing that settling your affairs will not add more stress to those grieving for you.
- Rest assured that your estate will be distributed the way you wish.