Estates

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Author:
spazzle
ID:
128170
Filename:
Estates
Updated:
2012-01-19 11:24:15
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Estates
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  1. Estate planning is
    what is done by a person to make sure that on their death, their bills are paid and their assets preserved and given to specified people or entities after their death
  2. What is an Estate?
    An Estate are the assets that pass (transfer) as a result of the death of the owner
  3. Will
    a document that sets out a person’s wishes and directions with respect to the disposal of his or her property after death
  4. TESTATOR (male) or TESTATRIX (female)
    The person making the will
  5. What is a Trust?
    • •A trust is a way of owning property legally, for the benefit of another person/entity
    • •The property is referred to as being held in trust for another person/entity
  6. Beneficiary
    The person for whose benefit the trust is created
  7. Settlor
    person who sets up the trust
  8. Inter vivos trust
    this is a trust that is established for the benefit of someone (the beneficiary) during the lifetime of the individual creating the trust arrangement (settlor)
  9. Testamentary trust
    this is a trust created by a will for the benefit of someone (the beneficiary) and becoming effective only upon the death of the Testator/Testatrix
  10. What Is A Trustee?
    The INDIVIDUAL OR INSTITUTION that holds the money or assets, the property of the trust
  11. Trustee is responsible for
    taking care of the property and making sure it is used according to the rules for which the trust (inter vivos or testamentary) was set up
  12. Estate Trustee with a will
    this is a person who is named in a will
  13. Estate Trustee without a will
    this is a person appointed by the Superior Court of Justice
  14. Estate Trustee has a number of responsibilities
    set out either by the will or by the law
  15. EXECUTOR (OR EXECUTRIX [Feminine])
    Executor is the name formerly used for an Estate Trustee and is the person who is named in a will to administer the estate of the deceased person
  16. ADMINISTRATOR (ADMINISTRATRIX [Feminine])
    is someone appointed by the court to administer the will or assets of an estate when the will fails to name someone to perform that role or there is no will
  17. ATTORNEY
    is a person or institution that is given the authority by an individual to act on their behalf in making decisions when that person is not physically or mentally capable
  18. POWER OF ATTORNEY
    for property or for personal care – document in which a person grants power over his or her property/assets or personal care to another person
  19. CERTIFICATE OF APPOINTMENT OF ESTATE TRUSTEE WITH A WILL
    • •This is a Certificate issued by the Superior Court of Justice to an estate trustee to confirm his or her authority to administer an estate – handle the affairs of the estate.
    • •If no will - referred to as a Certificate of Appointment of Estate Trustee without a will
  20. PROBATE (LETTERS PROBATE)
    • •A certificate known as Letters Probate was issued by the court and the will was attached to it. This is now known as a Certificate of Appointment of Estate Trustee – with or without a will
    • •If there was no will, an administrator was appointed by the court to handle the affairs of the estate. The administrator was granted “Letters of Administration”
  21. ASSETS AT DEATH ADMINISTERED BY THE ESTATE TRUSTEE
    • •All assets owned by the deceased in his or her name alone
    • •Some assets owned by the deceased with another person who may be living or also deceased
  22. ASSETS NOT ADMINISTERED BY AN ESTATE TRUSTEE
    • •assets that allow a beneficiary to be named and that name a beneficiary other than the estate itself (insurance policy)
    • •assets held jointly where the law allows the surviving joint asset holder to acquire full ownership upon the death of the deceased joint asset holder
  23. ROLE OF THE ESTATE TRUSTEE:
    • •make funeral arrangements
    • •locate will
    • •locate and notify beneficiaries
    • •locate, secure and value assets of estate
    • •retain and instruct solicitor and other agents and professionals (accountants) to assist in estate administration
    • •determine, evaluate and pay debts of deceased
    • •file personal and estate tax returns
    • •distribute assets to beneficiaries
    • •account to beneficiaries for administration of assets
  24. ROLE OF THE ESTATE SOLICITOR
    • •retained by and represents the estate trustee, NOT the beneficiaries
    • •obligations to estate trustee:
    • –advise estate trustee on estate administration matters
    • –advise estate trustee on obligations to beneficiaries and rights of certain individuals such as a spouse (FLA) or dependents
    • –file application for Certificate of Appointment of Estate Trustee
    • –instruct local newspaper to advertise for creditors per local practice
    • –prepare documents to deal with various estate matters and assets
  25. ROLE OF A SOLICITOR WHO IS NOT THE ESTATE SOLICITOR
    • •retained by beneficiary
    • •retained by a person who is not a beneficiary but has a claim against the estate:
    • •spouse of deceased
    • •beneficiary under previous will of deceased
    • •dependent of deceased
    • •creditor of deceased
  26. ROLE OF THE LAW CLERK AND LIMITATIONS ON THAT ROLE
    • •assist the estate solicitor:
    • - meet with clients if required by solicitor
    • - prepare letters to banks and financial institutions, employer, pension administrators to determine estate assets and liabilities
    • - prepare necessary court forms for application for certificate of appointment of estate trustee with a will or for application for certificate of appointment of estate trustee without a will
    • - prepare documents to transfer or sell estate assets
    • - conduct or supervise estate banking
    • - prepare or assist in preparation of income tax returns for deceased and estate
    • - organize estate documents for preparation of estate accounts and presentation of accounts on a passing of accounts if necessary
    • - assist in advertising for creditors
    • - assist a solicitor acting for a person who has a claim against the estate
    • •Limitations on the role of the Law Clerk
    • - By-law 7.1 and Rule 5 of the Law Society of Upper Canada
  27. Formal Requirements of Wills
    • 1. In writing
    • §Cyberspace, audio or video taped will not valid

    • 2. Signed by testator at its end
    • • exceptions
    • ▪ signed with a mark (x)
    • ▪ signed by someone else
    • 3. Witnessed by two witnesses
    • •Not beneficiary or spouse of beneficiary
    • ▪Gift to beneficiary witness void unless court satisfied no undue influence
    • •Both witnesses present when testator signs and must sign in presence of testator and each other
    • •Exceptions
    • ▪Holograph will (entirely in testator’s handwriting)
    • ▪Canadian Forces member on active service
    • ▪Sailor at sea on course of voyage
    • 4.4. Disposing intention
    • •Must be intention to give away property

    • 5. Appointment of Estate Trustee
    • •Practical (not legal requirement)
  28. Requirements of Testator
    Eighteen years of age (age of majority)

    • •Exceptions
    • ▪Married or previously married
    • ▪Will made in contemplation of marriage
    • ▪Military – not necessarily on active service
    • ▪Sailor at sea on course of voyage
  29. Testamentary Capacity
  30. •Must understand:
    • ▪what it means to make a will
    • ▪nature and extent of property
    • ▪relationships with those who might expect to benefit from estate
    • ▪potential claims of those left out
  31. Knowledge and Approval
  32. •Fully aware of contents of will
    •Understand why certain gifts were made
  33. Requirements of Estate Trustee
    • 1.Eighteen years of age (age of majority)
    • 2.Not an undischarged bankrupt
    • 3.Not mentally incapacitated

    Should be somewhat sophisticated in dealing with money and property

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