Wills, notification of death and probate

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AltaRed
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Re: Wills, notification of death and probate

Post by AltaRed »

The trust concept would be one way of doing it. Note Twa2w's comment with respect to trust longevity though (25 yrs?). It would be wise to check that out. What I don't understand is how you set up the trust for 50% of the value of your worth at this time when all is currently in a joint account, presumably JTWROS to your spouse? JTWROS is an undivided interest and that may be a legal technicality that you would have to sort out.

The other one would have been to have some/majority of your assets in individual accounts, which cleanly permits you to 'will' those assets as you wish (within the limitations of Family Law for your province).
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DavidR
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Re: Wills, notification of death and probate

Post by DavidR »

I don't believe that the 21 year deemed disposition rule applies to spousal trusts.
As Altared says, JTWROS obviously won't work because such assets would not pass through the estate.
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Re: Wills, notification of death and probate

Post by kumquat »

Isn't this why we haven't yet killed all the lawyers (sorry Bill).
I don't intend to offend anyone, that part is just a bonus.

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Re: Wills, notification of death and probate

Post by twa2w »

DavidR wrote:I don't believe that the 21 year deemed disposition rule applies to spousal trusts.
As Altared says, JTWROS obviously won't work because such assets would not pass through the estate.
I wasnt thinking of a spousal trust in the main part of my post but of a joint spousal trust where all the assets of the husband and wife go into a trust. Although I did add a line about spousal trusts.

Anyway here is a brief piece on the 21 year rule - it is a little more complicated than this but it gives an idea

Here’s how the rules apply to common types of trusts:

Most non-spousal personal trusts are subject to a deemed disposition every 21 years. The clock starts running when an inter vivos trust is established or, in the case of testamentary trusts, on the testator’s death.
Qualifying spousal trusts are subject to a deemed disposition on the death of the spouse (or common-law partner) and every 21 years thereafter.
Alter-ego trusts are subject to a deemed disposition on the death of the settlor and, should the trust continue beyond this date, every 21 years thereafter.
Joint spousal trusts are subject to a deemed disposition on the death of the surviving spouse (or common-law partner) and, should the trust continue beyond this date, every 21 years thereafter.
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Re: Wills, notification of death and probate

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AltaRed wrote:The other one would have been to have some/majority of your assets in individual accounts, which cleanly permits you to 'will' those assets as you wish (within the limitations of Family Law for your province).
All of our accounts are individual, even chequing accounts. Our Partnership Agreement dictates how they are managed. (We had a joint investment account but got rid of it when we simplified our brokerage lineup.) As an example, only DW has to file a T1135. Of course the mishmash makes consolidation difficult. Probate does not bother us. We have beneficiaries named wherever possible.

The 21 year limit on trusts does not bother me. I will check out the options. Thank you for reminding me.

Part of the reason that things are getting easier is that we are getting older. For example, my oldest son will be 67 in 21 years. And my oldest granddaughter will be 40.
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Re: Wills, notification of death and probate

Post by Glen »

Reading about notarial wills in this thread got me thinking. My wife and I have notarial wills from when we lived in Quebec. We now live in Ontario. I'm wondering whether we should get new wills done by an Ontario lawyer. Has anyone had to deal with a notarial will after a death in the ROC?

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Re: Wills, notification of death and probate

Post by miguel »

glen

I honestly do not see the point

In the unlikely event I leave this province before my time is up I would not bother getting a new will :)

but that is my opinion

I am no expert
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Re: Wills, notification of death and probate

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Glen wrote:Reading about notarial wills in this thread got me thinking. My wife and I have notarial wills from when we lived in Quebec. We now live in Ontario. I'm wondering whether we should get new wills done by an Ontario lawyer. Has anyone had to deal with a notarial will after a death in the ROC?

Glen
A Quebec will would be subject to probate in Ontario if the deceased last resided in Ontario. Normally the provisions of the Quebec will would be valid as written, in Ontario, but not necessarily so. Each province has its own requirements and constraints.

For the rules applicable in Ontario, see this.

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Re: Wills, notification of death and probate

Post by AltaRed »

Family law differs from province to province and a Will from Province A may be more difficult for the courts in Province B to deal with to obtain a Grant of Probate. IOW, it may make it more difficult for Executors/Administrators to get done what needs to be done, particularly if a Will is non-vanilla involving blended families, disportionate allocations to certain beneficiaries, dependents, etc.

Best to google information about 'probating out-of-province wills' before assuming a Will should not be re-done.
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Re: Wills, notification of death and probate

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I took AltaRed's advice and googled ' probating out of province wills'

The attached reference link came up which may be of interest to folk who have foreign assets. It also does cover out of province assets.
http://hollamanestateslaw.com/wp-public ... operty.pdf

I remain confused by one issue which I would think would be encountered often and should be quite straightforward -

Suppose a deceased lived and died in, say, Alberta and had an Alberta will. His real assets are in Alberta but many of his financial assets are custodied at brokerages or investment managers in, say, Ontario. Probate will begin in Alberta, but will the financial assets be subject to Ontario probate ?
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Re: Wills, notification of death and probate

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Phil D wrote:Suppose a deceased lived and died in, say, Alberta and had an Alberta will. His real assets are in Alberta but many of his financial assets are custodied at brokerages or investment managers in, say, Ontario. Probate will begin in Alberta, but will the financial assets be subject to Ontario probate ?
No. My mother lived and died in AB with an AB based will. Her investment assets were with RBC DI and probate of all assets was completed in AB. The brokerage was nothing but a custodian on behalf of the investor.
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Re: Wills, notification of death and probate

Post by kcowan »

Phil D wrote:The attached reference link came up which may be of interest to folk who have foreign assets. It also does cover out of province assets.
http://hollamanestateslaw.com/wp-public ... operty.pdf
I wonder if the primary will should contain any reference to assets in another country. Would this generate any probate in the home country? Would there be any advantage/disadvantage?
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Re: Wills, notification of death and probate

Post by Phil D »

kcowan wrote:
Phil D wrote:The attached reference link came up which may be of interest to folk who have foreign assets. It also does cover out of province assets.
http://hollamanestateslaw.com/wp-public ... operty.pdf
I wonder if the primary will should contain any reference to assets in another country. Would this generate any probate in the home country? Would there be any advantage/disadvantage?
I have just started to look in to all of this and am certainly not fully knowledgeable yet. But so far it appears to me that one can have one multi jurisdictional will or more than one single jurisdictional will. My conclusion at the moment is that it is preferable to have a will in each country which only covers the assets in that country. Then each will is written in the form that probate in that country requires and probate can be granted without reference to any assets or wills in any other country. However, there is an international agreement which does allow for probate granted in Canada, for example, to be ' re sealed ' in other countries so that probate granted in one country can be used in another country if necessary.
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Re: Wills, notification of death and probate

Post by twa2w »

Oops dbl post
Last edited by twa2w on 09 Feb 2017 21:16, edited 1 time in total.
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Re: Wills, notification of death and probate

Post by twa2w »

Phil D wrote:
kcowan wrote:
Phil D wrote:The attached reference link came up which may be of interest to folk who have foreign assets. It also does cover out of province assets.
http://hollamanestateslaw.com/wp-public ... operty.pdf
I wonder if the primary will should contain any reference to assets in another country. Would this generate any probate in the home country? Would there be any advantage/disadvantage?
I have just started to look in to all of this and am certainly not fully knowledgeable yet. But so far it appears to me that one can have one multi jurisdictional will or more than one single jurisdictional will. My conclusion at the moment is that it is preferable to have a will in each country which only covers the assets in that country. Then each will is written in the form that probate in that country requires and probate can be granted without reference to any assets or wills in any other country. However, there is an international agreement which does allow for probate granted in Canada, for example, to be ' re sealed ' in other countries so that probate granted in one country can be used in another country if necessary.
Multiple wills are common practice for wealthy folks who have assets in several countries. It is important though that each will specifically mention that it pertains to the assets in that country only and that there are other Wills pertaining to assets in other countries.

All Canadian jusidictions will accept a will made in a country or province of ' a court of competent jurisdiction' ( I think that is the right term). So wills from say France, England, USA, Australia would all be acceptable in Canada. Excluding Quebec, probate court is essentially formality. The determination is that the will is a valid will ( dated, signed witnessed and follows basic legal format)and that it is indeed the last will and that the named executor is willing to act. It gives the executor the right and power to act on the will.
The various family law acts do not come into play in probate. In effect they generally only come into play in the event of a dispute over the distribution of assets. Ie in most provinces a will can be disputed if it gives less assets to a spouse than he or she would recieve under a separation / divorce or prenup/ cohab or the like.
Excepting the cases AR mentioned up thread(combined families, second or third marriages etc), most commonly wills seem to leave everything to the spouse on then to children if spouse does not survive.
Generally speaking these wills have no need of updating when moving provinces but it is always wise to review your will on a regular basis and moving is an ideal time.
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Re: Wills, notification of death and probate

Post by optionable68 »

My father is now on his death bed. Over the past few years all of his assets were transferred to my mother. When he passes he will have no assets and no liabilities.

My mother is the sole beneficiary on his will.

Given he has no assets or liabilities, is there anything we need to consider in terms of probate or any legal proceeding requiring a lawyer ?
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Re: Wills, notification of death and probate

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Not that I can tell. The executor will still need to go through the process of cancelling things like OAS, CPP, DB pension, SIN, Driver's License, Health card, etc. Usually a funeral home Statement of Death is all that is required, and possibly in some cases, a notarized or certified true copy of the Will to verify the Executor is who s/he says s/he is. In some cases, the funeral home will make the 'usual' submissions for CPP, OAS, etc. to cancel payments and the form for CPP Survivor's benefit.
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Re: Wills, notification of death and probate

Post by twa2w »

Sorry to hear that.

No, if there are no assets or liabilities, there is no need for probate. The only issues I see are the final CPP and OAS deposits and the CPP death benefit.
In the case of the pension, I assume these are deposited to a joint account with your mother so this is not an issue.
If the CPP death benefit is payable to the estate, most bank managers, with a copy of will and death cert will make an exception and deposit to the survivors account. Esp if your mother is a long term client and has funds on deposit.

The funeral home normally notifies the government so the only action required would be the usual paperwork like cancelling drivers license sin etc, changing joint accounts to the survivor and filing final tax return.

If your father was a veteran, there may be some benefits for your mother you may want to look into.
The funeral home usually provides a list of people, agencies to notify and what to look for.
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Re: Wills, notification of death and probate

Post by amphitryon »

Don't forget to apply for the Survivor's Pension, unless this happens ''automatically''?

If the survivor is:
age 65 or more, then the survivor's pension is:
60 per cent of the contributor's retirement pension, if the surviving spouse or common-law partner is not receiving other CPP benefits

https://www.canada.ca/en/services/benef ... nsion.html
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Re: Wills, notification of death and probate

Post by adrian2 »

amphitryon wrote: 16 Oct 2017 13:18 Don't forget to apply for the Survivor's Pension, unless this happens ''automatically''?

If the survivor is:
age 65 or more, then the survivor's pension is:
60 per cent of the contributor's retirement pension, if the surviving spouse or common-law partner is not receiving other CPP benefits

https://www.canada.ca/en/services/benef ... nsion.html
A more complete explanation: Understanding CPP survivor benefits.
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Re: Wills, notification of death and probate

Post by hamor »

Someone I know died recently. He had no assets, but the last bill for cable/cell phone etc wasn't paid and it was something like $2000. Can the company come after the wife (estranged, I guess) or the kids (adult)?
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Re: Wills, notification of death and probate

Post by AltaRed »

If there were truly no assets in the estate, and if nothing was distributed to beneficiaries, and if the outstanding bill is against the deceased's assets alone, then likely no. That creditor is hooped. The Executor has nothing to pay the bill with.

I would think it odd though that any deceased would have zero assets at time of death. There would have likely been some possessions, perhaps a final CPP and/or OAS payment if the deceased had been collecting them, and a bank account of something.
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Re: Wills, notification of death and probate

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tedster wrote: 12 Jan 2017 20:07 Thanks twa2w, that's what I thought. ... My brother had 4 children and none asked me if they were getting anything other than some personal mementos. They were very surprised to get what they got. I think that if I had wanted to, I could have kept it all.
Until they heard via the grape vine (or by requesting court documents if the will was probated). Then they could have sued you.

PS - I see you referred to Notary, so I am guessing this was Quebec. Copies of the will must then have subsequently gone into the files of various institutions as you liquidated the estate.

PPS: If you are from Quebec, your might find this page worth reading. https://www.educaloi.qc.ca/en/capsules/settling-estate. The "liquidator" as it is termed in Quebec (as opposed to Executor) has many obligations, one of which is to inform all beneficiaries. Failure to do so can leave the liquidator personally liable.
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Re: Wills, notification of death and probate

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AltaRed wrote: 16 Oct 2017 16:09 If there were truly no assets in the estate, and if nothing was distributed to beneficiaries, and if the outstanding bill is against the deceased's assets alone, then likely no. That creditor is hooped. The Executor has nothing to pay the bill with.

I would think it odd though that any deceased would have zero assets at time of death. There would have likely been some possessions, perhaps a final CPP and/or OAS payment if the deceased had been collecting them, and a bank account of something.
The deceased was collecting disability benefits (that's CPP right?), not sure what happened there....
but thanks
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Re: Wills, notification of death and probate

Post by twa2w »

Disability benefits could be from a number of sources,
CPP, workers comp, union, employer plan( usually tnrough an Insurance Co) etc. You may have to check bank records to see source if not obvious from paperwork on hand.
Depending on source there could be a life insurance benefit attached.
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