Probate and Estate Administration
The estate planning process involves organizing your affairs to preserve your wealth and dispose of your assets in accordance with your wishes – which is why it’s incredibly helpful to have one of our estate planning lawyers on your side. Bykov Law provides assistance in probate, trusteeship, and estate planning preparation, administration, and execution.
Probate refers to the process of becoming a certified executor or trustee of a will. The legal process can be quite complex, and you may wish to hire experienced wills and estates lawyers to guide you through it. The process of probate or estate administration determines whether a will is valid, or whether it has been revoked or superseded by another will, made later on. A will must be validated before assets and money can be distributed to named heirs while also giving creditors the opportunity to present a claim on the estate. Probate resolves confusion between multiple documents while dealing with any issues regarding whether a will is legitimate. The court will accept the will, determining whether the named executor can still serve in this capacity. If the court determines the person should not serve as executor or trustee (perhaps the person is ill, or not able to take on the responsibility), then the court may appoint an alternate estate trustee.
If you are dealing with the probate process following the death of a loved one, or are contending with other estate administration issues, having a highly experienced Toronto estate administration lawyer from Bykov Law by your side can make the process much less stressful. We are zealous in our effort to relieve the stress these conflicts and issues place upon our clients.
What Estate Administration Lawyers Do
A knowledgeable Toronto estate administration lawyer can protect your estate and financial assets, preparing and guiding you through the entire process. Estate administration lawyers are also known as probate lawyers as they advise beneficiaries and executors regarding the estate of the deceased. Estate administration lawyers can help deal with the settlement of debts, property issues, and asset distribution. Following the death of an individual, it must be determined whether their will is valid, complying with all the necessary legal formalities.
The executor will then be granted control over the decedent’s assets, distributing the assets to heirs as detailed in the will. An estate administration lawyer can assist with bank accounts, privacy issues, and paying the taxes and creditors of the decedent. There can be claims or challenges from spouses, former spouses, common-law spouses, dependents, or creditors—estate trustees must provide written notice to all those named in the will.
In cases where the decedent did not leave a will, a Toronto estate administration lawyer can also assist the decedent’s loved ones. Probating an estate can be complex, time-consuming, and difficult. Executors or trustees are expected to take on a range of duties and responsibilities related to estate management. With no legal assistance, estate administration could be very confusing, with even one misstep having grave consequences for all those involved.
Estate Administration Law
Estate law, including wills, Powers of Attorney, and probate, is governed by individual provinces and territories. The Office of the Public Guardian and Trustee (OPGT) in Toronto governs the following:
- Holding funds in trusts for those involved in lawsuits, as well as minors
- Making financial decisions for an adult who has been deemed mentally incapable of handling his or her own affairs
- Providing services associated with the protection of mentally incapable individuals who require assistance with financial, personal, or legal care
- Protecting the interests of the public regarding charities
- Administering estates
These functions are in accordance with the Public Guardian and Trust Act, along with the Substitute Decision Act, 1992.
What Are Some Common Issues Related to Estate Administration?
There are many estate administration issues that can arise following the death of a loved one. Some of these issues include:
- Grievances regarding debt and quantum meruit claim—When an individual dies owing money, the creditors can file a debt claim against the estate. When there is no fixed amount for a service rendered, the debt claim is referred to as a quantum meruit claim, referring to fair and reasonable compensation that must be determined by the court.
- Unpaid child support or spousal support—Any unpaid child or spousal support due prior to the individual’s death is a debt due and must be paid by the estate before distributions can be made to beneficiaries. In most cases, these obligations cease on death, however, there could be a life insurance policy intended to continue these payments.
- Gifts made prior to the death of the individual—If the decedent has given away assets prior to their death, then the estate might be much smaller than intended. If there were no improper actions associated with the gift or gifts, they will likely stand, although certain gifts can be challenged. The recipient of the gift may be called upon to prove the gift was intended and was not the result of undue influence.
- Jointly owned homes and/or bank accounts—The question by other potential beneficiaries of the estate may be whether assets that should have remained in the estate were transferred to a joint owner (who then received the asset on the death of the individual) due to undue influence.
- Statutory claims—While it seems counterintuitive, you are not actually free to do anything you want in your will. For example, you are not allowed to completely disinherit your spouse—or any other individual who is financially dependent on you. In some provinces, it can be illegal to disinherit a child.
- Objections to the named executor—While decedents generally have the right to choose any person they want as an estate trustee or executor, if there is evidence the executor placed undue influence on the decedent, he or she can be removed.
- Disputes arising from the behavior or non-action of the executor—The most common complaints involve an executor that refuses to show the will to family members, an executor who is very slow to probate, or an executor who is claiming excessive compensation.
While challenging a will is possible, it is not an easy process, and there are no guarantees regarding the end result. A will can generally be challenged due to:
- The decedent did not have the capacity to make a will, i.e., he or she did not have a reasonable understanding of the consequences of the choices made in the will or did not have a reasonable understanding of their own finances.
- The decedent was unduly influenced by a beneficiary to include them in the will.
A challenge to a will can be time-consuming and expensive, and the challenger may have limited access to the decedent’s medical records, as well as little knowledge of how and when the will was made. Many challenges to a will involve a trial to determine whether diminished capacity was at hand.
How To Select The Best Toronto Estate Administration Lawyer to Meet Your Family’s Needs Now and For the Future
Choosing an estate planning lawyer who can meet your family’s needs, deliver professional advice and timely legal results, can feel like an overwhelming task during a difficult time. The estate administration lawyer you choose can help to locate a will, explain probate laws, file an application with the court for a certificate of estate trustee with or without a will, and deal with many other issues. Your lawyer will have a deep understanding of the rules related to probate assets and will understand the different taxes and probate fees that vary from one jurisdiction to the next. Your Toronto estate administration lawyer can help with the following:
- Helping avoid family conflict
- Avoiding unwanted claims
- Obtaining quick access to the decedent’s estate
- Garnering approval from the courts
- Supporting the named or appointed executor or estate trustee
- Helping avoid probate lawsuits or unnecessary delays
- Identifying the finances and any insurance policies and assets of the decedent
How Toronto Estate Lawyer at Bykov Law Can Help
We work very hard to understand our client’s goals so that we can deliver professional advice and timely legal results. We put our clients first by looking at the experience of going through a legal matter from our client’s point of view. We pride ourselves on our good communication with clients and quick response to questions by phone and email.
Importance of Having a Will
Your will is the most important part of your estate plan. It is your last statement on this earth that gives you peace of mind in the knowledge that your loved ones will be cared for. Once the drafting of will is complete, we will help you properly execute your will and explain any questions you may have going forward. Once your will is executed, we will store either an original or a copy in our fireproof safe as the Law Society of Ontario dictates.
At Bykov Law, we regularly draft wills for our clients. We take down your instructions carefully and personalize your will to your exact specifications. We also provide advice on how to best achieve your wishes and goals, ensure your loved ones are provided for, reduce your estate administration tax and streamline the overall estate administration process.
No Will Left Behind
You may wonder whether you actually need a will. Perhaps you think you don’t have sufficient assets to warrant a will, or maybe you just haven’t gotten around to having a will prepared. Imagine, however, that you unexpectedly pass and your loved ones are left to deal with proving they are entitled to your assets. When you die without a will, your property, assets, and investments may not go to those you would choose. Having a will prepared is actually a very simple process when you have an experienced Toronto wills lawyer from Bykov Law assisting you.
When you die without a will (intestate), the court will determine who will act as the executor for your estate. There will be increased costs and delays in paying creditors and distributing assets to heirs, which can lead to additional family problems. In Toronto, unless an individual who is financially dependent on the decedent makes a claim, the first $350,000 will go to the deceased person’s spouse—if that spouse claims the entitlement.
Assets beyond that amount will be shared between the children of the decedent and his or her spouse. If there is no spouse, the deceased person’s children will inherit the estate. If any of the decedent’s children have predeceased him or her, that child’s children (grandchildren) will inherit their share. If the decedent has no spouse, children, or grandchildren, the parents inherit the estate equally, and if there are no living parents, the siblings of the decedent will inherit. If there are no heirs, the government can take all the possessions and assets belonging to the decedent.
Even if you have no heirs, you might want to leave your assets to a charity rather than have the government take your assets. If the decedent owed a debt that was not co-signed or joint, that debt will not be passed on to others in the family, although if creditors can prove money was owed them, they can file a claim against the estate. A will is also essential when there are minor children, allowing a guardian to be named in the event the other parent is also deceased or otherwise out of the picture.
What is the Benefit of Using a Toronto Estate Administration Lawyer for Your Will Rather than a DIY Will?
While DIY options for wills abound on the Internet, there are many reasons you should speak to an experienced Toronto wills lawyer rather than handling your own will preparation. Some of those reasons include:
- You can be sure your will contains the proper terminology. As an example, perhaps instead of naming an executor, you use the word “guardian.” Since the words have vastly different meanings in a will, your entire will could be declared invalid.
- A legal professional will review asset descriptions to ensure each asset is clearly defined. While you may know what the old home place describes, confusion can result in the land in question being included in the residue of your estate, rather than to the person you intended it to go to. Your Toronto wills lawyer can review each legal description of property to ensure it is correct.
- There are no issues related to intestacy, which means dying without a will.
- Your loved ones will not encounter issues related to an absence of witnesses to your will.
- A Toronto wills lawyer can ensure there are no unintended pitfalls that you may not have considered.
- Your lawyer will work with you to cover all potential contingencies, such as an executor that passes before you.
- A wills lawyer will ensure beneficiaries are correctly identified.
What Are Some Common Issues Related to a Toronto Estate Administration Lawyer?
There are many issues related to wills that can arise following the death of a loved one. Some of these issues include:
- There may be unexpected creditor claims against the estate.
- Unpaid child support or spousal support can become an issue, as these debts must be taken out of the estate assets. While spousal support and child support obligations usually cease on death, there are exceptions.
- The decedent made gifts to loved ones prior to his or her death. These gifts may be legitimate, although because they reduce the level of assets left for the heirs, the receiver of the gift may have to justify the gift, proving there was no coercion or undue influence.
- A spouse was disinherited in the will, or another individual who was financially dependent on the decedent was disinherited. While you may think you can leave your assets to anyone you want, this is not strictly true. The laws in each specific province will apply, but generally speaking, you cannot completely disinherit a spouse or other person who depended on you financially.
- The decedent placed assets that should have remained in the estate in joint ownership with others. Like gifts given by the decedent, these joint ownerships may need to be explained to ensure there was no coercion involved.
- Heirs to the estate object to the named executor. If it can be shown the executor placed undue influence on the decedent in order to be named executor, the court may remove the individual.
- There are disputes between heirs and the executor regarding the executor’s behavior.
A will can usually be challenged when it can be shown the decedent did not have the mental capacity necessary to make a will, or when the decedent was unduly influenced by another person to include them in the will. Challenges to wills can be time-consuming, difficult, and expensive, so are more often seen in estates that have a large number of assets.
Power of Attorney
At Bykov Law, we are experienced in drafting all Powers of Attorney for our clients, either as part of their estate planning process or as a stand-alone legal service. Power of attorney is a legal mechanism through which you may give another individual or group of individuals the authority to make legal decisions on your behalf. This can range from something as simple as signing a document on your behalf, to making serious medical decisions. The Power of Attorney will be written to your exact specifications, executed, and stored at our office.
There are many reasons why you may need to do this. For example, you may find yourself in a situation where you need to buy, sell or otherwise deal with property in another jurisdiction or at a time of your absence from the country. Your power of attorney would be able to make decisions on your behalf when you are away. Frequently, when a parent dies in another country, a group of siblings will send just one member to administer the estate on behalf of all of them.
There are two different types of power of attorney:
- Power of Attorney for Personal Care – This grants an individual who, in the event of you not being able to do so, will make the decisions regarding proper health care for you. In extreme situations, your power of attorney may decide it is best to terminate life support.
- Power of Attorney for Property – This grants an individual power over all matters related to your fiscal, physical or other property. Depending on how the document is drafted, it will allow the power of attorney to sell your house, take money out of your bank accounts, pursue litigation on your behalf and so forth.
None of this is to say that the power of attorney is allowed to run your affairs as they see fit! At all stages the power of attorney is bound by a fiduciary duty to you. In the event that things get messy, or claims arise that accuse the power of attorney of not acting in your best interest, then that person will have to satisfy the court that their actions were in fact done with good intention. Otherwise, they will find themselves facing legal consequences.
Finally, it should be noted that no power of attorney can grant any individual the power to make a will or testament on your behalf. The law recognizes that the finality of a will is so important that only the testator has the power to make or alter one.
How the Estate Planning Lawyers at Bykov Law in Toronto Can Help
Bykov Law Toronto wills lawyers are familiar with all aspects of wills, power of attorney, estate planning, and trust law. Our wills lawyers have the necessary experience, expertise and resources to help our clients achieve their goals and serve their estate planning needs. Our highly skilled legal counsel from Bykov Law can ensure your estate plan reflects your situation and your goals.
We work very hard to understand our client’s goals so that we can deliver professional advice and timely legal results. We put our clients first by looking at the experience of going through a legal matter from our client’s point of view. Bykov Law has earned a reputation among our peers, as well as our clients, for our communication skills and quality of service. We strive to ensure your Toronto will reflect your wishes and is professionally and legally prepared. If you would like to discuss your estate plan with one of our wills and estate planning lawyers, contact us today to schedule a consultation and learn how we can help you.