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Jan 26
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Don’t be afraid of a Power of Attorney

By Estates, Power of Attorney

A Power of Attorney Gives You the Control You Need

What is a Power of Attorney?

A power of attorney is a legal document that grants another person control of your finances, property, and medical decisions in the event that you are incapacitated. It allows you to appoint someone you trust to make important decisions for you and act in your best interest.

What Rights Will I Lose?

When you sign a power of attorney, you will not lose any of your rights or responsibilities. You are still in charge of your affairs and will retain all decision-making power. Your appointed person will only act when you are unable to do so or when you want them to.

Who Should I Appoint?

The person you appoint should be someone you trust to make decisions in your best interests. It is important to make sure they are aware of and understand your wishes, and that they are reliable and trustworthy.

We’re always happy to answer questions about estate plans and powers of attorney. Give us a call and we’ll chat.

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Nov 18
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Getting started with probate

By Estates

Introduction

Probate is the legal process that takes place when someone dies and their estate needs to be dealt with. For example, if a person has left assets which need to be distributed or property that needs to be sold.

What is probate?

Probate is a process that gives you a court order that allows you to prove that you are the rightful administrator of an estate and gives you permission to distribute its assets. It is not always essential when someone dies, but even if it’s not required, it does allow you to deal with their property and money in a more efficient way than if you didn’t have probate.

Probate only applies if someone has died and left behind assets or property which need to be distributed after they are gone. If there are no assets, then there’s nothing left worth worrying about and probate won’t be necessary at all. Depending on what assets the deceased person owned, including bank accounts and land/property, probate may be required in order for you to sell or distribute it.

Can I get probate without a will?

If you have a will, it’s usually easier for your loved ones to get probate. If you don’t have a will, then the process is called administration. The person who takes care of your estate is called an “administrator” (without a will) an “executor” (with a will) or a “personal representative” (for either an administrator or an executor). The personal representative has to file papers with the court and prove that they are the person allowed to act on behalf of the estate.

Gathering the information you need to complete the probate application form, including making a list of assets and liabilities.

  • Gather the information you need to complete the probate application form.
  • Make a list of assets and liabilities: if you don’t know what they are, ask your lawyer.
  • Don’t forget to include any benefits that may be payable through the deceased’s pension and life insurance.
  • The intake form is a “best effort” – if there’s information that you don’t know right away, that’s okay. Write down on the form that the asset/debt/information exists but that you don’t know what it is right now. It can always be obtained later.

Conclusion

We hope that this post has helped you understand what probate is and the process of applying for it. Your next step should be to gather all the information you need to complete the application form, including making a list of assets and liabilities. If you’re still unsure about how to get started, please check in with your lawyer.

Aug 25
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Dealing with your cottage in your will and estate

By Estates, Wills
Planning for Cottages in EstatesPlay Video

Cottages are an important part of many families. They’re a place filled with happy memories and have been an annual gathering place for those closest to you. But when it comes time to pass on your cottage, family members may have different ideas about what should happen next and how the cottage should be handled in your will. People often come to us with questions like:

 

  • How do you pass a cottage on to the next generation?
  • Is a cottage trust a good idea?
  • How do we deal with conflicting ideas about what happens to the cottage?

 

Let’s take a look at some of those questions so that you can start the conversation with your family

 

Avoiding family conflict with cottages

Family cottages can cause family conflict if they aren’t handled properly in your will. There are a number of ways that this can happen, but the most common is when one child really wants to keep the cottage but others may not be able or interested in doing so. On the opposite ends of the spectrum is when everyone wants the cottage but on different terms. If you would like to avoid any potential family conflicts arising from your cottage when you pass away, here are some tips:

  • Consider holding a family meeting to discuss what everyone hopes will happen. It may lead to a discussion where everyone can be accommodated, or will at least allow you to identify where points of disagreement might be.
  • Make sure each child knows what was agreed upon by all members of the family before making a decision about how the property will be dealt with after your death.
  • Think about appointing someone else (a trustee) instead of leaving it directly to one person who may have different ideas about what should happen with the property than all other siblings living nearby. We’ll discuss this below.

 

What about cottage trusts?

A trust can be created for the benefit of a specific person or group of people, or for the benefit of a specific purpose. In a cottage trust, the cottage is transferred under your will (or beforehand) to someone who will act as the “trustee” of the cottage. That person, who can be an adult child, another family member, or someone trusted but unrelated, will be the technical owner but they will be holding it for the benefit of others, often family members of the person who has passed away. Cottage trusts are often used to ensure that the cottage isn’t controlled by any one family member and also allows a mechanism to leave funds to ensure that the cottage is looked after for a period of time. It can also be used to temporarily hold a cottage until your children are over a certain age and able to manage the responsibility of a cottage.

 

Trusts aren’t right for everyone

Trusts can be complicated and there are a number of factors to consider when thinking about setting one up. The tax consequences are a major consideration and everyone thinking about a cottage trust should talk to their accountant before they get too far into the process. Trusts are also a more expensive solution to set up than leaving a cottage to someone in your will outright and involve significant planning and discussion.

 

Beyond that, though, a cottage trust doesn’t solve all of the conflict problems that people are concerned about, it only delays them. Trusts have a practical time limit to them in Manitoba and in some other provinces (including Ontario) can have a firm legal time limit to how long they can exist for. This means that when the time limit is up, or some other conditions expire, something will eventually need to be done with the cottage anyway and it will need to be given to someone or sold.

 

Passing on the cottage doesn’t mean that all your heirs need to be co-owners.

The most common way of dealing with a cottage isn’t a cottage trust, but to leave it outright in a will. You can leave the cottage to one person or more than one person, or maybe even have some other options, depending on your wishes.

  • To one heir: If your cottage is going to be passed down to a single heir, then you’ll need to appoint that person as the beneficiary of the cottage in your will.
  • To multiple heirs: You can name more than one individual as a beneficiary of the cottage, with each share being equal or even unequal. It would be important that everyone involved has a very good idea of what that shared ownership looks like, especially between adult children, to make sure that everyone understands what the intention and responsibilities are with that kind of shared ownership.
  • To charity: You can also choose to give the property to a charity. This means that your family will no longer have use of the cottage but may confer a significant tax benefit. You should definitely seek professional financial advice before considering this.

 

Talking with family

Whatever you do, talk to your family about it beforehand and make sure the know the plan so there are no surprises later. They don’t have to like or agree with the plan, but discussions that happen while concerns can still be addressed are significantly better than trying to have a discussion afterwards. If your child loves the cottage, but has never been particularly interested in maintaining it, for example, she might not be thrilled about inheriting a fixer-upper. So how does one avoid these kinds of misunderstandings?

 

  • Start early: It’s a good idea to have this conversation well before you pass away (it’s awfully hard to do so afterwards). While everyone needs time to adjust and process what’s happening when someone dies, talking about who inherits assets while there is still plenty of time can help minimize any confusion down the road. Set a dinner to discuss estate plans, including the cottage. Give everyone some time beforehand to develop their thoughts about a potential plan and what they want. You may be surprised at how much common ground there is around wishes and concerns.
  • Be honest: The best way to set people up for success after you’re gone is by being open and honest with each other now—not only about who gets what, but also why each person should get something at all! For example: “I’m leaving my cottage to my daughter because I know she’ll love it as much as I did,” or “I’m leaving my cottage to my son because he has always been such an integral part of our family.”
  • Seek assistance: A lawyer experienced with cottage challenges can provide answers through the conversation process. Often times an excellent solution can be crafted, so long as you do it within the bounds of what is allowed, and with some guidance on potential pitfalls with a plan. For more contentious families, even a family therapist or mediator who can facilitate discussions may be very helpful in keeping everyone focused and working towards a common goal.

 

In the end…

There are many options when it comes to dealing with your cottage in your estate and it’s important to find a solution that works for you and your family, and not just what seems easiest. It all depends on what your family wants, how much time they want to spend together, and how much they trust each other. The best thing to do is figure out what works best for you and then talk about it with your family so that everyone knows what’s going on.

 

This article is for information purposes only and is not legal advice. You should definitely seek your own counsel about plans that you may be considering. This article is written with Manitoba in mind and may not be applicable in other provinces or countries. Some of the information in this article may not apply to your situation at all so please do not make any plans or decisions based on it exclusively.

 

Gerrit Theule is a partner at Wolseley Law LLP and his primary practice area is in Wills, Estates, Trusts, and Elder law.

Sep 15
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Online Assets And Your Estate

By Estates

When we think about assets to include in a will people have, for over a hundred years, been concerned about the “big 4” things: house, money, kids, and business. Modern estate planning brings many more concerns, not the least of which are digital assets.

This can encompass many, many things from website ownership or rewards points from loyalty programs through to much more cutting edge digital assets like cryptocurrencies such as Bitcoin. In most cases though, an email or social media account will be far and away the most common digital asset, full of communications, photos, and memories – many of which we consider more valuable than our simple possessions. And for the most part, people have no idea how those accounts are dealt with after we pass on.

Many of the largest email/storage/social media providers have established policies for this eventuality and I’ve detailed some of them below. This information is current as of August 1, 2017 and should be checked on the services’ sites before making plans regarding these assets.

Gmail/Google: One of Google’s little known features is called “Inactive Account Manager” which grants access to your account to someone that you designate in the event that your account has been inactive for a certain period of time. You get to choose what information they get from Gmail, Drive, Photos, etc. (or if the account should just be deleted) and can customize an email to that person explaining what you want done with the data. If you do not set up the Inactive Account Manager there is a multi-step process that, ultimately, may involve an order from a U.S. based court (as Gmail is located in the US, along with all of the other providers here) but certainly no easy path to accessing that information.

Facebook: Similar to Google, Facebook has a “Legacy Contact” feature where, on proof of death, you can designate another Facebook user to be allowed to either close your account or access a download of the things that you’ve shared within the network. It can be accessed through the general settings link on your profile.

Dropbox: Dropbox is likely the easiest service to access as they have clear procedures for accessing an account. They require that you provide your ID along with, for Manitoba purposes, a grant of probate of a will that specifically grants access to the account to the executor. Interestingly, unlike Google, they do not specify a U.S. court, though they do indicate that even with all documentation they cannot guarantee that they will be able to provide access.

Hotmail/Outlook: Microsoft’s process is more opaque. They will not grant access to the account, nor to any other Microsoft services (like OneDrive) but after a review may be able to provide “contents of a personal email account.” It requires a valid “court order” (which would presumably include a grant of probate) from the “requesting party’s jurisdiction” (such as Manitoba) and as with Dropbox it appears to require specific granting of the information in the will that is probated.

Yahoo Mail and iCloud: Both Yahoo (which also owns the photo site Flickr) and iCloud (which is the umbrella terms for everything Apple related) spell out their policies in their terms of service quite explicitly: all email and storage content, along with purchased apps and music are non-transferable and cannot be released to anyone as a privacy measure. Fortunately, for Apple users, the best way around that is to enable “Family Sharing” which gives people you designate access to your photos and purchases, if nothing else. For their part, Yahoo allows someone to at least close a loved one’s account with sufficient proof of death.

If you are named as someone’s executor and are going to attempt to use procedures like these to access someone’s account after they have passed, it is important to notify the services quickly as, usually, a period of inactivity will lead to a closing and deleting of the account and everything in it.

Ultimately, the easiest, and most sure-fire way to grant access to these accounts after you have passed is to write down the passwords and leave them with your will. It is important to note that, technically, sharing your passwords, even with your executor, is a violation of some website/service’s Terms Of Service, and that there are also risks to writing down passwords and keeping them unsecured. I would suggest that each user has to balance those risks for themselves. More to the point, one of the larger issues here is that it is often not practical to keep passwords written down as passwords, and even accounts, change over time, but if you want to be able to grant your loved ones access to your accounts, it is, in most cases, necessary.

Gerrit Theule is a partner at Wolseley Law LLP and a member of the Manitoba Bar Association’s Wills and Estates Section executive. The information presented in this article is not to be considered legal advice nor fit for any particular purpose. You should consult a lawyer with any questions specific to your situation.

Mar 06
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Will You Make a New Year’s Resolution this year?

By Estates, Wills No Comments

by Gerrit Theule and Tim Brown

  • Originally published in the Wolseley Leaf in January 2017

With the close of 2016 and the arrival of 2017 a lot of us may be thinking about New Year’s resolutions to commit to. New Year’s resolutions are too often the things that we know that we should do but for whatever reason, we haven’t gotten around to actually doing. They are the adult version of the “green vegetables” of our childhood, only now, many of us need to be less concerned with getting dessert and more with our own wellbeing and that of those around us. This year, there is no better candidate for a New Year’s resolution you can achieve than to write a will, especially ( but not only!) if 2016 saw you married, divorced, having kids, or saw the passing of a close relative.

Now, I know what you’re going to say, because I hear it almost every day: “I know that I really should have one but…” Often the reasons are varied but they often boil down to two factors: concern about cost, and not wanting to talk about “it”.

The cost factor is a simple one: just ask. Wills can range in cost, usually in relation to how complex the estate and will instructions are, but basic wills can be very affordable, especially given how much money and confusion they can save your loved ones. Many lawyers place prices for simple wills on their websites and most are happy to discuss their fees upfront with people who ask. In the end, a little bit of money spent on a will can save even what would appear to be the easiest estate a significant amount of money in additional fees. Without a will, a number of forms and procedures may be required to show the courts even basic information such as who should be the one to administer your estate, to say nothing of how your estate should be divided, what should happen to your family business, or where any minor children or even pets should live. If you don’t make a decision, the law will decide for you.  The resulting additional (and avoidable) costs from gathering and presenting information for the courts all too often far outweigh the cost of making preparations ahead of time.  Most importantly, it often doesn’t lead to a result that you’d be happy with.

Talking about “it” is the tougher issue to address, but like so many other New Year’s resolution subjects, not talking about it won’t make it go away. If you want a say in what happens to your minor children, possessions, and money, now is the time to have your say. More than that though, although it may not feel like it, making a will is one of the kindest things that you can do for those close to you. Knowing the “who” and the “what” when you pass away lessens the possibility of confusion and disagreement leading to painful and costly fighting amongst family members.

Certainly 2016 saw more than its fair share of high-profile celebrity passings, but what is more interesting is the news about them that we didn’t see. Even with the media’s constant focus on celebrities, stars with estate values in the tens or hundreds of millions passed away this year with hardly a hint of the kind of family discord that many of us think of when we think of the death of millionaires. The notable exception was Prince who famously passed away last year without a will, leaving his family and estate in utter confusion. The rest, we can assume, passed having made plans for their loved ones to follow, meaning that those closest to them can concentrate on what is really important: remembering their loved one.

Making a will as a New Year’s resolution this year lets you do the same thing for your own friends and family. There is no wondering about what you would have wanted, no agonizing about making sure that they are doing what they should be doing, and no fighting. Yes, like vegetables or the gym, it’s something that you may not really want to do, but in the end it’s good for you and, more importantly, good for those you love. You’ll be happy that you did.

Gerrit Theule and Tim Brown are lawyers and the owners of Wolseley Law LLP

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