MIKE BROGAN Realtor® for Real Estate in Windsor, Ontario at BUCKINGHAM REALTY (WINDSOR) LTD.

Executor (Trustee) of an Estate and Estate Administration in Ontario and Inheritance Rules

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You have been appointed Estate Trustee (Executor) of an estate, and you want to fulfill this important responsibility correctly, and in accordance with the applicable rules.

Call Mike Brogan; I have the experience in all areas of estate and property matters that you need at this difficult time. I have assisted many families in their time of loss in the 25 years I have been doing business. When you have questions about estate issues- I have all the answers, and I really do care. Call or email me today.

                                                          ADMINISTRATION OF ESTATES
TABLE OF CONTENTS
*Canada Pension Plan
*Automobiles
*Bank Accounts
*Payment of Funeral
*Old Age & Canada Pension cheques
*Safety Deposit Boxes
*Life Insurance
*Joint Real Estate
*Appointment of Estate Trustee (Letters Probate)
*If there is no Will
*Handwritten (Holograph) Wills
*Advertisement for Creditors
*Income Tax Estate Returns
*Inheritance Rules in Ontario
Note to Readers: The information provided in this article is a brief summary only for information purposes and is applicable only in the Province of Ontario. It is not intended to be legal advice. Full and complete advice can only be given by a lawyer who has detailed information about your individual circumstances. Call Mike Brogan for information and guidance regarding estate property at Buckingham Realty Ltd. (519) 948-8171
1.CANADA PENSION PLAN
Canada Pension Plan provides: for a maximum death benefit of $2500.00;
surviving spouse pension of 60% of the deceased's pension
pension to dependent children in full-time attendance at school.
These are based on the deceased having made the maximum contributions; otherwise, the benefits may be less.
Application forms can be obtained from any funeral home or from the Canada Employment Centre where guidance and advice can also be requested. You will need the funeral director's death certificate, marriage certificate, and birth certificate for yourself and each dependent child, as well as the social insurance number cards for the deceased, the dependent children and yourself.
2. AUTOMOBILES
Cars, trucks, snowmobiles or trailers registered in the name of the deceased, can be transferred at the Driver & Vehicle License Office. Sign the ownership certificate as estate trustee (formerly called executor or administrator). Take a new insurance certificate in your own name. This can be obtained from your insurance agent.
If the vehicle is being sold or transferred to other than a surviving spouse, a certificate of mechanical fitness is also required.
No Retail Sales Tax is payable if the vehicle is given to a beneficiary under the will. The Licence Office will need to view the part of the will giving the vehicle (or giving the whole of the estate). Otherwise Sales Tax is payable on the book value of the vehicle even if it is not being sold.
IMPORTANT: If you are selling the vehicle, be sure to obtain cash or a certified cheque and attend at the Licence Office with the ownership certificate and the purchaser so that you can be sure the ownership is changed and sales tax is paid. THE ESTATE MAY BE RESPONSIBLE FOR ANY DAMAGES THE MOTOR VEHICLE CAUSES WHILE IT IS STILL REGISTERED IN THE DECEASED'S NAME.

3. JOINT BANK ACCOUNTS
The surviving joint bank account holder should attend at the bank and have the bank accounts changed over into his or her name alone. The bank will have a new signature card and other forms to be signed but no other documents are required.
4. OTHER BANK ACCOUNTS
Bank accounts in the name of the deceased alone will normally not be released by the bank until the Certificate of Appointment of Estate Trustee (formerly called Letters Probate or Letters of Administration) has been obtained. All banks will permit payment of funeral expenses and the probate fee, and some banks will permit other expenses to be paid before the Certificate has been obtained.
If there are no other assets of the estate for which a Certificate of Appointment of Estate Trustee is required and the bank account does not exceed the bank's set value, the bank will waive this requirement.
5. PAYMENT OF FUNERAL
The funeral account may be paid from the deceased's bank account. Take a copy of the funeral account to the bank.
6.OLD AGE PENSION AND CANADA PENSION PLAN CHEQUES
The estate is entitled to the Old Age Pension, Canada Pension Plan, and G A I N S cheques for the month in which the deceased died. If the cheques arrive after the date of death, deposit them into the deceased's bank account or the estate account if one has been opened.
Old Age Pension and Canada Pension cheques or direct deposits for months after the month of death must be returned. The address for this is:
(a) for Old Age Pension and Canada Pension Plan:
Income Security Programs
70 Cedar Street South, Ground Floor
TIMMINS, Ontario
P4N 8C8
(b) for G A I N S
Ministry of Revenue
Parliament Buildings
Queen's Park
TORONTO, Ontario
M7A 2B3
7.SAFETY DEPOSIT BOXES
If the Safety Deposit Box was jointly held the survivor can have the box transferred into his or her name and remove any of the contents. Stocks, Wills, deeds, etc., should be removed and delivered to your lawyer to be dealt with by him.
If the safety deposit box was in the name of the deceased alone, the bank is entitled not to permit anyone to enter the box, other than the executor to remove the original Will, until the Certificate of Appointment of Estate Trustee (formerly called Letters Probate or Letters of Administration) has been obtained. Most banks will allow the executor to enter the box by producing a copy of the Will, if any, and to copy the contents.
8. LIFE INSURANCE
Proceeds of life insurance payable to a beneficiary can be paid to the beneficiary without waiting for the Certificate of Appointment of Estate Trustee (formerly called Letters Probate or Letters of Administration). The insurance company will usually require the policy, an application form completed by the beneficiary and a statement completed by the doctor who attended at the time of death or a funeral death certificate.
The local agent of the insurance company is most helpful in this regard and you should contact him as soon as possible.
If life insurance is payable to the estate or to a beneficiary who has died the money will only be paid to the estate after the Certificate of Appointment of Estate Trustee (formerly called Letters Probate or Letters of Administration) has been produced to the insurance company.
9. JOINT REAL ESTATE
If the house or other real estate was held in joint ownership, you should call a lawyer and he/she will proceed to prepare a Survivorship Application to be submitted to the Land Registry Office in order to have the title placed in the name of the survivor. In order to do so, he/she will require particulars of the title, so that he/she can do the necessary searches of title and prepare the necessary documents, and a copy of the funeral director's or Provincial death certificate.

10. CERTIFICATE OF APPOINTMENT OF ESTATE TRUSTEE (formerly called Probating the Will)
An application is made to the Ontario Court - General Division proving to the satisfaction of that Court that the Will was in fact the deceased's last Will and that it was validly made. At the same time, the estate trustee (formerly called the "executor") undertakes that he will faithfully administer the property of the deceased and if his administration is ever called into question, he will account to the Judge of that Court. After the Court officials have satisfied themselves that the documents and the Will are in order and ensure that no application is being made elsewhere for the same deceased, they issue a Court document called "Certificate of Appointment of Estate Trustee With a Will".
The Court charges a fee, commonly known as "probate fees", calculated on the basis of $5.00 for each $1,000.00 of the first $50,000.00 of the value of the assets shown on the application and $15.00 for each $1,000.00 of the value of the assets in excess of $50,000.00. For example, if the value of the estate was $100,000 the probate fee would be $750. The Court requires this to be paid in advance by certified cheque payable to the Minister of Finance.
It normally takes several weeks to obtain the information to prepare the application and the Court takes from two to five weeks to issue the Certificate of Appointment of Estate Trustee.

11. IF THERE IS NO WILL
An application is made by one of the next of kin to the Court to be appointed as Estate Trustee Without a Will for the estate. This person must be nominated in writing on the proper forms by at least a majority of the next of kin who are over eighteen years of age. A "probate fee" calculated on the same basis as set out above is charged by the Court. It may take several weeks to obtain the information, and it is often difficult to obtain the signed nomination forms from the next of kin. The Court takes two to five weeks to issue a Court Order appointing the applicant as Estate Trustee Without a Will.
If the applicant for Certificate of Appointment as Estate Trustee without a Will is not the surviving spouse of the deceased, the applicant must be bonded by an insurance company or by two (2) individuals.
Without a Will, the estate is distributed in accordance with the Succession Law Reform Act which distributes the assets in accordance with a government formula displayed at the bottom of this page.
Assets of which a surviving person was a joint holder with the right of survivorship or which have a named beneficiary, such as life insurance policies, go to that person automatically.
12. NOTICE OF APPLICATION FOR APPOINTMENT OF ESTATE TRUSTEE
Before the Application can be made to the Court for the Certificate of Appointment of Estate Trustee a Notice of Application for Appointment of the Estate Trustee must be mailed to each beneficiary under the will, together with a copy of the will. If there are beneficiaries under 18 years of age a copy is sent to the Children's Lawyer (formerly called the Official Guardian).

13. HANDWRITTEN WILLS
The Succession Law Reform Act of Ontario recognizes holograph Wills which are entirely in the handwriting of the deceased and signed by him.
14. ADVERTISEMENT FOR CREDITORS
A notice to creditors which advises that all claims must be submitted prior to a fixed date often appears in local newspapers. This notice is recommended in any case where the executor or administrator is not aware of the deceased's affairs and wishes to find out what debts may be owing so that the executor or administrator will not be personally responsible for any debts.
If the executor or administrator is also the sole beneficiary then he or she is still responsible for the debts of the deceased and it may not be advisable to publish the notice.

15. INCOME TAX
A final income tax return must be prepared for the portion of the year in which the deceased was alive. This can be prepared and submitted to Revenue Canada at any time after the deceased's death and up to April 30th in the following year. Included in the final return is the normal income that would have been declared by the deceased in that year together with any accrued interest or income on bonds or investments.
Unless the property is passing to the deceased's spouse it is all deemed to have been sold at the date of death and capital gains tax is payable. If the property passes to the surviving spouse then no capital gains tax is payable until the spouse sells the property or dies. The deceased's principal residence is not included in property on which capital gains tax is charged.
Tax returns for years prior to the year of death must be prepared and filed, where required, within six months of the deceased's death.
If, after the date of death, any significant amount of income is earned by the estate, an estate and trust return must be prepared and filed with Revenue Canada, Taxation. T-3 slips are given to the beneficiaries to be included with their income tax returns showing the income to which they were entitled and upon which they are taxable.

16. THE SURVIVING SPOUSE'S WILL
It is imperative that you also have a Will, making provision for the dispositions of the assets on your death. If you already have a Will, you should have it reviewed by us and updated if necessary. A new executor may have to be appointed. Provisions should be made for dividing your estate as you wish amongst your children or other beneficiaries. You should also consider what should be done if any of your children predecease you.
17. SUCCESSION DUTY AND ESTATE TAXES
There are no longer any Succession Duties, Estate Taxes or other death duties payable in Ontario. The only taxes on death are Income Tax and the Probate fees.
Engaging the Help of Professionals
If the estate consists of investments, it is prudent to consult an investment professional. This will help with deciding how and in what to invest, as well as providing a buffer to the executor should the results prove disappointing. The executor bears the ultimate responsibility for the decisions that are made with respect to the estate and cannot delegate this authority to anyone; however, relying upon the advice of a professional will go a long way in demonstrating that the executor has acted diligently and in the best interests of the estate.
Engaging the assistance of an experienced, knowledgable Realtor® can also provide a significant degree of protection, as well as smooth the process of selling the real property. The Realtor® can recommend easy solutions to make the estate's real property assets sell for the highest possible price. Often, estate properties require some cleanup or fresh paint, and a Realtor® will be able to provide objective guidance in this regard, in order to maximize the estate's asset value. Call Mike Brogan at Buckingham Realty Ltd. (519) 948-8171

In these difficult financial times, anyone tasked with safeguarding assets and accounting to interested parties is in a very tricky spot. In most cases, an executor finds themselves having been given a job they never applied for, lacking in the skill or knowledge to fulfill their obligations, and yet being held to some of the highest standards recognized at law. It is only prudent to seek the assistance of those who have been down this road before.   Contact Mike Brogan Realtor® at Buckingham Realty (Windsor) Ltd. for an evaluation of your home or commercial/investment property.
Mike Brogan - Call me toll-free at 1-877-443-4153 in Windsor, Ontario (519) 948-8171
Office is at 4573 Tecumseh Rd. E., Windsor, Ontario N8W 1K6   Fax: (519) 948-7190

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Inheritance Rules in Ontario

The following is a quick synopsis of how your property would be divided if you died without a will in the Province of Ontario.

While this information is believed to be true at the time of writing, it is meant for general information only. Individuals should contact their lawyer to make sure that their specific situation receives proper consideration.

Heirs left: Distribution as follows:
1. Spouse only All property to spouse
2. Spouse and 1 child 1st $200,000 to spouse
1/2 of balance to spouse
1/2 of balance to child*
3. Spouse and 2 or more children 1st $200,000 to spouse
1/3 of balance to spouse
2/3 of balance equally to children*
4. Parents but no spouse, children or grandchildren Property equally to father and mother or the survivor of them
5. None of the above but surviving brothers or sisters Property equally to brothers and sisters*
6. None of the above but at least one niece or nephew Property equally to nieces and nephews or the survivor of them
7. None of the above but some next of kin Equally among next of kin of equal degree of ancestry and in no case is representation allowed
8. No lawful heirs All to the Crown
* if a child, children, brother or sister is dead, then the children of that person shall take the share their parent would have taken if living.

Money

The power of a power of attorney

A poorly handled document can rip families apart

By James Pasternak, Financial PostMay 23, 2009

It's a legal document that may stretch to only 1,100 words. Its execution takes no more than a couple of minutes and when the ink dries on the signature lines, this document usually gets slipped into a file folder, largely forgotten.

Despite its innocent beginnings, the document commonly known as a power of attorney only sleeps. And when someone starts digging for it years later, the enormity of the arrangement hits home.

"You're giving someone the power to sign your name. So, what can you do when you sign your name? You can sell your house, you can enter into debt, you can dispose of assets. You are giving someone a lot of authority," says Judith Wahl, a lawyer and executive director of the Toronto-based Advocacy Centre for the Elderly.

"You better know how it works and what you are getting into."

Power of attorney (or a Continuing Power of Attorney for Property, as it is called in Ontario) is a legal document that gives a person or persons of your choice the ability to manage your affairs, so long as you are competent and capable at the moment authority is granted. Despite the phraseology, no one is obligated to appoint a lawyer and "property" extends beyond real estate to decisions about paying bills, investments and collecting monies owed. The word "continuing" is used because the document stays in force if the person who signed it -- the grantor -- is still living but is no longer capable.

And unless this document is handled carefully, families can tear themselves apart.

"You [could have] family members fighting with each other before the individual is even dead. Whereas, in the estate situations, at least you wait until the person dies before they start fighting," says Toronto estate lawyer and mediator Howard S. Black, a partner with Minden Gross LLP and an adjunct professor at Osgoode Hall Law School.

A sister document in most jurisdictions relates to personal care. In Ontario, this is called the Power of Attorney for Personal Care. To invoke such a document, a capable person appoints one or more persons to make medical and personal health decisions if he or she becomes incapable of doing so.

The power of attorney for personal care is often confused or used interchangeably with what is commonly known as the "living will." The living will is an expression of desired options for medical response--it does not appoint someone to act on your behalf.

The legislative framework for a power of attorney for property and personal care is crafted in each province and territory, which means that the terminology, rules and regulations might change from jurisdiction to jurisdiction.

Whatever they are called, if structured and executed in a thoughtful manner, the document can operate as a convenient and effective financial and personal planning tool.

"You have the certainty that the person you trust will be the one who will manage your property," says Barry Fish, of the Thornhill, Ont.-based law firm Fish & Associates.

Moreover, having a power of attorney for property ensures that one's assets will not fall under public guardianship, which is when an agency is appointed to take care of the property, financial affairs and physical needs of an older adult who is not mentally capable.

One does not want one's assets managed by a guardianship. The 2004 Annual Report of the Office of the Provincial Auditor of Ontario found numerous examples of poor investments and the draining of estates in that province's Office of the Public Guardian and Trustee.

Just as a power of attorney for property protects assets, the power of attorney for personal care reduces the guesswork that often arises when one is incapacitated and unable to express wishes, values, religious beliefs or preferences toward medical intervention and long-term care.

Taking such precautions certainly worked for the Jackson family of Montreal (the family asked that their real names not be used). When Jeb Jackson was in his late 20s, his parents assigned him and a sister the role of power of attorney.

A power of attorney for personal care (called a Mandate in Quebec) provided the Jackson family with a solution to a bitter stalemate over the type of care their father was to receive. While three siblings wanted their father in a long-term care facility, the other three wanted him at home with 24-hour care. After moving Mr. Jackson from home to an institution and then back home again, the family members whose names appeared on the Mandate exercised their authority. Dad stayed at home.

Drafting power of attorney documents can be simple and inexpensive, or complicated and expensive. Mr. Black finds that drafting customized power of attorney documents costs between $150 and $300.

Some soul-searching is required when drafting a power of attorney for personal care. Finding the right person to fulfill personal medical wishes is never easy. "You should name someone who would stand up for your religious beliefs, even if they are different ones," says Ms. Wahl.

One way to avoid messes is to draft simple decision-making structures with checks and balances. For example, siblings could jointly sign cheques, contracts and other documents on an either/or basis.

Thought should be given to having a back-up person in case the "attorney" becomes ill, is incapacitated or dies. Spouses often select one another, but don't have a Plan B.

Continuing power of attorney for property documents should also include mechanisms to prevent "financial abuse."

"I've had clients whose sons and daughters have bought cottages, paid off cars, paid off mortgages," warns Ms. Wahl.

Safeguards include having two signatures on all cheques and other documents, daily withdrawal limits on bank accounts and quarterly reports.

In the end, according to Ms. Wahl, the compulsion to fill out power of attorney documents should be driven by reason, not passion. A bad selection might be worse than no selection at all.

"Bottom line is you shouldn't do one because you [feel you] should have one. You should do one only if you can trust the person you are naming and the person you are naming should not necessarily be a son or daughter," says Ms. Wahl.