Wills

It is important to have a plan in place that reflects your wishes for your intended beneficiaries, and to protect your dependents in the event of your death. Many people are reluctant to prepare a Will, because of a fear of their own mortality. But, as a wise woman once remarked, no one ever died from making a Will.

Our team of Wills and Estates lawyers are well-versed in estate planning. We recognize there is no one-size-fits-all solution to your estate plan. We work closely with our clients to understand your family and relationship background, what you value most, and whom you wish to benefit or exclude from your estate. Whether your estate is modest or complex, HGR Graham Partner’s Wills and Estates counsel can add value to your plan.

A carefully drawn Will achieves the orderly succession of assets while taking into account the most beneficial tax result. Trusts can be used to achieve long term administration and tax-effective application of assets. Our team of estate planners assists individuals to design and implement strategies to effectively dispose of assets during their lifetime or on their death to achieve their goals while utilizing available tax planning techniques.

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Wills









    Wills - HGR Graham Partners LLP

    The case for making a Will

    Anyone with assets or dependents should have a Will. If you die without a Will, your assets will be distributed to beneficiaries in accordance with a prescribed list, mandated by the government of Ontario, which may not reflect your family’s particular needs, or your wishes for your estate.

    For example, the Succession Law Reform Act provides that if a person dies intestate (without a Will), leaving a spouse and children, the surviving spouse is entitled to inherit a “preferential share” of the estate. The amount of the preferential share is set by statute. After deducting the preferential share, the balance of the estate is divided between the spouse and the deceased’s children.

    While this may be an appropriate outcome in many cases, there are situations in which the legislated list of beneficiaries can cause real hardship to a family. If the deceased left a common-law spouse instead of a legally married spouse, for instance, the common law spouse would not be included in the legislated distribution.

    If you have dependent children or other family members who are dependent on you, you will want to ensure that you have appointed a responsible Trustee to manage the inheritance your dependents will receive. As well, you can employ the Will to appoint your chosen guardian for your minor children.

    An intestate estate is almost invariably more challenging to administer. It can result in increased expense to the estate and create acrimony among surviving family members.

    Changing your Will

    Major life events, such as weddings, births, deaths and divorce can result in a need to review and change your Will. The laws of the Province are amended from time to time as well, and these legislative changes can result in circumstances that affect your estate plan.

    We are happy to conduct a Will review with you to discuss the impact of personal life events and legislative changes on your estate plan.

    Appointment of Estate Trustee

    The choice of candidate to act as your Estate Trustee is a critical aspect of a well drawn Will. Your Estate Trustee (colloquially known as the executor) is responsible to administer your estate. These tasks include:

    • arranging funeral service and final resting place of remains,
    • determining all of the assets of your estate,
    • payment of any debts owing at the date of your death,
    • filing your final income tax return and paying taxes owed,
    • settling any legal disputes in existence at the date of death,
    • applying for a Certificate of Appointment of Estate Trustee (probate) if required,
    • locating and serving all beneficiaries with Notice of the Application,
    • managing the assets of the estate while it is under administration,
    • liquidating assets of the estate, including readying for sale and selling real estate,
    • obtaining a Clearance Certificate from CRA,
    • distributing the estate to the beneficiaries in accordance with their entitlement.

    Clients will often appoint Estate Trustees based upon a perception that it is a privilege to be appointed. In fact, the duties of the Estate Trustee can be onerous, and the obligation continues until the estate is finally distributed. This can take upwards of a year or more. The ideal Estate Trustee is patient, organized, and most importantly, trustworthy.

    For high net worth clients it may be appropriate to appoint an institutional Estate Trustee, either solely or along with a trusted individual to administer your estate, by reason of the complexity of the estate assets. The institutional Trustee (usually a bank or trust company) will require that their compensation agreement be incorporated into your Will. Your lawyer is knowledgeable about institutional Estate Trustee compensation agreements and can provide advice to you about this.

    Family Law considerations

    The rising rate of divorce in Canada, coupled with an increase in common-law relationships, has resulted in a divergence from the traditional nuclear family. This can make estate planning for 21st century families somewhat more challenging. We are attuned to the complexities of blended families from an estate planning perspective.

    In some situations, it is appropriate to consider the creation of a domestic contract to protect the inheritance of your children. Family law does provide for the use of domestic contracts, (sometimes referred to as cohabitation agreements, marriage contracts, premarital or post marital contracts), to protect assets in the event of a breakdown in your relationship, and to ensure that your estate plan is executed as you want it to be.

    We will discuss with you any financial obligations arising from your prior relationships, including any spousal or child support requirements, to ensure that these obligations are met if they continue after your death.

    Cottage properties

    The family cottage occupies an oversized space in the psyche of cottage owning families. At HGR Graham Partners, our roots in cottage country have enabled us to develop skill and sensitivity over many years of addressing this most emotion-laden asset.  Clients often struggle to determine the best way to pass the cottage property on to the next generation, or even whether it is a practical option. We can offer planning suggestions for our clients to consider, ranging from inter-vivos transfers, to options to purchase the cottage from the estate, or to passing the property under your Will to one or more beneficiaries.

    We can work with you to craft co-ownership agreements, cottage trusts and maintenance agreements, which can enable the continuation of a multi-generational tradition of cottage ownership.

    Probate fees and taxes on death on a cottage or other 2nd (or subsequent) properties can be considerable. Cottages acquired by a grant of Crown land, built with the blood and sweat of the original owner, have often increased in market value so substantially, that the taxable gain on the property can be a real impediment to beneficiaries taking title. Our lawyers are able to illuminate the issue and suggest solutions.

    U.S. and  Multijurisdictional  Estate Issues

    For those clients who have real property or investments in the U.S. or elsewhere outside of Canada, estate planning can become more challenging. In some cases, a Will is required in the foreign jurisdiction to deal with the out-of-jurisdiction assets. Our lawyers are comfortable working with foreign counsel to ensure that if a Will is required in the foreign jurisdiction, it is effective to deal with your foreign located asset, and does not conflict with, or overlap, your Ontario Will.

    Estate Planning for Individuals with Special Needs

    Children and adults with vulnerabilities ranging from serious physical injuries or impairment, mental health issues, Asperger’s syndrome, autism, OCD and other disabilities require particular consideration and protection.

    Powers of Attorney or guardianship applications can be employed where appropriate, to allow parents or other adults to manage the property and personal care decisions of the special needs family member.

    Trusts play a significant role in this estate planning area. Establishing trusts can permit you to provide funds for your loved one during your lifetime (inter-vivos trusts) and in the event of your death.

    The use of a Henson Trust can enable your special needs family member to receive an inheritance from your estate without jeopardizing his/her entitlement to government benefits.

    Other resources available to family members to assist a special needs loved one include government programs, such as the establishment of Registered Disability Savings Plans.

    Corporate Wills / Multiple Wills

    Multiple Wills can be prepared to reduce the impact of probate fees against the estate. Multiple Wills are often employed by persons who hold shares in a privately held Canadian corporation.

    The shares of the corporation can be conveyed without the necessity of probate. A secondary Will created to bequeath these shares can also be used to shelter other assets which would not ordinarily be subject to probate, such as vehicles, collections and artwork. The primary Will is used to bequeath the assets of your estate which are subject to probate.

    While there are increased initial costs to prepare multiple Wills, in the appropriate case, this can result in a reduction of probate fees for the estate of such magnitude that it is well worth the investment. Your counsel will discuss the pros and cons of this strategy in detail with you.

    Life Insurance Policies

    Life insurance policies can form an important part of your estate plan. When you have minor children, life insurance can replace your earnings in the event you die while they are still dependent.

    Death benefits on life insurance policies can be passed outside of the estate by direct beneficiary designations, thereby reducing the probate fees payable by the estate. Direct beneficiary designations on RRSPs and RRIFs accomplish the same goal.

    Life insurance policies can be purchased and left to the estate as a means of providing a fund for payment of probate fees, thereby preserving more of the value of your estate for your beneficiaries.

    Life insurance trusts can also be incorporated into your Will to control the distribution of proceeds of the policy to your beneficiaries, to ensure they receive their distribution at a mature age.

    Charitable giving / tax advantages

    A gift to a charitable organization that you support can be one of the most satisfying aspects of Will planning. Charitable giving is also an area of opportunity for estate tax savings. The gift of proceeds of an insurance policy or an RRSP through your Will can result in significant tax benefits for your estate.

    Our Wills and Estates lawyers can discuss with you charitable gifts of cash, securities, life insurance proceeds and many other asset categories.

    Creating an Estate Plan

    HGR Graham Partners has skilled Wills and Estates lawyers available to address your estate planning needs in any of our 5 offices: Barrie, Midland, Orillia, Elmvale and Penetanguishene.

    To initiate the estate planning process, we will ask you to complete an intake form, which forms the factual background for our initial discussions. You don’t need to come in with your plan for your Will fully determined. Your Wills and Estates lawyer can offer suggestions to resolve issues that may be vexing you and holding you back from completing this most important task.

    Request an Appointment

    Meet HGR Graham's Wills Lawyers

    • Sean Ainley

      Sean Ainley

      Partner

      Phone: 705.526.2232 ext. 227

      Email: Sean Ainley

      Meet Sean Ainley

    • Riley Brooks

      Riley Brooks

      Associate

      Phone: 705.737.1249 ext. 171

      Email: Riley Brooks

      Meet Riley Brooks

    • Joshua Clarke

      Joshua Clarke

      Associate

      Phone: 705.737.1249 ext. 111

      Email: Joshua Clarke

      Meet Joshua Clarke

    • Chrisandra Firth

      Chrisandra Firth

      Counsel

      Phone: 705.327.6656 ext. 334

      Email: Chrisandra Firth

      Meet Chrisandra Firth

    • Michael Hanton

      Michael Hanton

      Associate

      Phone: 705.737.1249 ext. 123

      Email: Michael Hanton

      Meet Michael Hanton

    • Christine Manners

      Christine Manners

      Partner

      Phone: 705.327.6656 ext. 323

      Email: Christine Manners

      Meet Christine Manners

    • Wendy Miller

      Wendy Miller

      Counsel

      Phone: 705.737.1811 ext. 128

      Email: Wendy Miller

      Meet Wendy Miller

    • Richard Moran

      Richard Moran

      Associate

      Phone: 705.526.2232 ext. 290

      Email: Richard Moran

      Meet Richard Moran

    • Suzanne Poole

      Suzanne Poole

      Partner

      Phone: 705.549.6060 ext. 437

      Email: Suzanne Poole

      Meet Suzanne Poole

    • Stephanie Yeo

      Stephanie Yeo

      Partner

      Phone: 705.526.2232 ext. 276

      Email: Stephanie Yeo

      Meet Stephanie Yeo

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