Wills & EstatesWills & Estates

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A properly drafted Will is an essential component of an estate plan and is an expression of your decisions as to the manner in which your Estate is to be distributed upon your death.  Estate Administration involves assuming legal obligations in order to distribute an Estate in accordance with a Will, or if there is no Will, then in accordance with the laws of the intestate succession.

Drafting Wills

A Will is document that takes effect upon death. It sets out the manner in which the estate is to be distributed, who are to receive the estate (the beneficiaries), and who is to implement the Will (the executor). A Will is not “written in stone” and can be changed before it takes effect by an amending document called a codicil, or by the preparation of a new Will.

In situations where there is no Will (an intestacy), no one has legal authority to deal with the estate until appointed by the court. In an intestacy, the estate will be distributed to the people, and in the proportions, as determined by provincial legislation.

Upon death, it may be necessary to have the Will probated by the court, which will involve fees (an estate administration tax) to the court based on the value of the estate at the time of death. In addition to assisting with the preparation of your will, we can also advise you on strategies to reduce or eliminate thesefees. Please contact us.

 

Estate Administration

Upon a death, the Estate Trustee is the person responsible for administering the Estate of the deceased.  The responsibilities of the Estate Trustee will include the filing of tax returns of the deceased and of the Estate, paying outstanding income taxes, paying the debts of the deceased, paying beneficiaries and obtaining releases from them, and if necessary, passing the accounts of the Estate in court.

Even if the deceased left a valid Will, it may be necessary to file a probate application with the court in order to have the authority of the Estate Trustee confirmed.  If the deceased did not leave a valid Will, then no one would have the legal authority to deal with the Estate until such authority was obtained from the Court by a probate application.

The position of Estate Trustee involves assuming responsibilities that may result in legal liability if not carried out properly.  Please contact us for advice on Estate administration issues.

 

Estate Litigation

Have you been left out of a Will according to which you rightfully expected to be a beneficiary? Do you believe a relative was subject to undue influence such that his or her Will does not accurately reflect true intentions? Has a loved one named you in a Will that is difficult to interpret and causing a dispute as to the distribution of assets to beneficiaries?

We at McPhadden Samac Merner Tuovi can assist you in these situations. While litigating after the death of a relative or loved one is undesirable, on occasion there is no alternative. In those situations, you may have no alternative in order to preserve or establish your rights.

Should you find yourself in such a scenario, contact us to discuss the matter. If your rights or the rights of your minor children are being improperly affected, we can take the necessary steps to remedy the situation.

 

Powers of Attorney

A Power of Attorney For Property is a document by which a person, the Donor, authorizes another person, the Attorney, to deal with the property of the Donor while the Donor is alive.  Unless restrictions are set out in the Power of Attorney, the only limitation on the power of the Attorney would be the inability to make a Will for the Donor.

The Power of Attorney may provide that it shall continue in the event of the mental incapacity of the Donor.  If a person loses his mental capacity such that he or she is not able to make legal decisions, and he or she does not have a Power of Attorney For Property, then no person would have the authority to deal with the person's property which may come under the management of the Office of the Public Guardian and Trustee.  Most people would prefer, in the event of their mental incapacity, that their property be managed by someone of their own choosing, which would be accomplished by a Power of Attorney For Property.

A Power of Attorney for Personal Care is a document by which a person, the Grantor, authorizes another person, the Attorney, to make decisions for the Grantor about important personal care matters such as consent to medical treatment or withholding of consent to certain undesired treatment.

An Attorney owes a fiduciary duty to act in the best interests of the Donor and is thereby accountable in law for their actions. Please contact us for further information.

 

Trusts

A trust is a vehicle in which a person places legal ownership of assets in the hands of a trustee, who is entrusted to look after those assets on behalf of and for the benefit of the beneficiaries.

Trusts are commonly used in will planning. For example, a person might want someone experienced and trusted to manage assets for the benefit of a dependent child until that child is old enough or able enough to look after herself/himself.

Trusts can also be set up during a person’s lifetime. One common form of trust we see is the family trust—assets are put into a trust, to be managed by a trustee for the benefit of various family members.

McPhadden Samac Merner Tuovi can help you understand the issues you face, and create structures to best serve your needs. Please contact us for further information.

 

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