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Taking Care of Pets

While pet owners unquestionably love their pets, and tend to see their pets as members of the family, the law sees things differently. The law looks upon pets as chattel or property, which presents a problem when trying to plan for their future care and welfare in the event that you are no longer able to care for them.

Ultimately, the problem with pets comes down to this: given their status as property, pets can’t own anything, and can’t be gifted anything. In other words, you won’t be able to bequeath any of your finances or property to your pets. They are still living thing things who need to be fed, sheltered, and cared for, but without rights or legal status of their own, this can become difficult to arrange.

At Yeti Law, your Legal Sherpa® team understands the bond people have with their pets and the desire to ensure they are taken care of in the event of death. You’ll be relieved to know that this is hardly an insurmountable obstacle, and your Legal Sherpa® has the experience and tools to help. A big part of estate and forward planning at Yeti Law is the focus on you, your concerns, and your life relationships. We use tools to develop an understanding of these relationships, and we will help you find the most suitable living situation for your pets.

Who Will Care for Your Pets?

Caring for your pets becomes an issue of planning, and making appropriate arrangements with those you trust. This requires making decisions as to who is best suited for the long term care of your pets, but it also requires communication, as you will need to ensure that those you select to care for your pets are both willing and able. Your Legal Sherpa® can help you make all the necessary provisions, which in most cases will be covered by language included in your Will to leave the necessary funds for the long term care of your pets to someone who has agreed to provide your pet(s) a good home. This will need to be sufficient to cover food, upkeep, and any other pet-relate expenses that may come along, including health and veterinary expenses that may arise later.

As with any estate or forward plans you draft, Yeti Law believes strongly in the periodic review and (if need be) revision of those documents. Plans you make for your pet are no different. Friendships and relationships change, and health can diminish, so those you initially chose to care for your pets may no longer be best suited or even willing to do so. With regular review, you can be certain that your pet’s future welfare is assured.

Legal Sherpa® Tip

Keep medical records, veterinary information, and the names and contact information of the people you trust with your pets in a place where your Estate Trustees and Attorneys can readily access it.

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Taking Care of Children

At Yeti Law, we always encourage parents to nominate others to make healthcare decisions for their younger children in the absence of the parents. In Canada, children are not the property of their parents. Accordingly, the rights of children to make healthcare decisions and to participate in them are recognized. However, if a child is not old enough to make a decision or for some other reason, such as a child suffering a serious injury and the parents are not available, we recommend having an emergency plan in place. Part of the plan involves signing a Medical Power of Attorney for Children.

Medical Power of Attorney for Children

Much like any other Power of Attorney document, a medical power of attorney for children grants an individual of your choosing the right to act on your behalf. The difference in this case is that you are assigning to this individual the right to act on your behalf only as far as it concerns the health and welfare of your children. The document itself can extend from relatively minor decisions on your child’s behalf, such as the authority to enroll your children in extra-curricular activities, or access to school records, to broader decisions such as housing, to important medical decisions such as approval of medical treatments, or mental health treatments.

Power of Attorney does not equal long term or permanent guardianship. This document does not replace provisions made for your children in your last Will and testament, and if you plan to be away or unavailable for a long period, your Will is not sufficient legal documentation to grant power of attorney on a child’s behalf. It’s well worth your time to meet with your Legal Sherpa® and have a document written for the protection of your children if you are unavoidably away from them long term.

Choosing a Suitable Medical Power of Attorney Nominee

As with any Power of Attorney document, you need to be confident that the person you are nominating is willing and also able to make decisions on your behalf. In this case, special consideration must be made because of the significant demands of anyone who is chosen to care for children. You also need to ensure that the persons named in your Medical Power of Attorney document can be counted on to make decisions that fall within your value system. Communication is therefore extremely important, as you may assume that a close friend will share your values, and will make decisions similar to those which you yourself might make on behalf of your children, but this isn’t always the case. You should understand and be comfortable with their values and decision-making if you are to make the most well-informed choice of whom to appoint in the document.

A good discussion of the subject can be found in this Canadian Paediatric Society article:

Treatment decisions regarding infants, children and adolescents – https://www.cps.ca/en/documents/position/medical-decision-making-in-paediatrics-infancy-to-adolescence

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Assets Located in Different Jurisdictions

Life’s journey often ends up very far from where it began. People move, travel, immigrate, emigrate, all while acquiring assets in foreign jurisdictions. What many fail to realize is that even with a legal Will in place in your home jurisdiction, assets held in foreign jurisdictions may be subject to foreign laws that may supersede the locally drafted Will.

If you hold assets in foreign countries or jurisdictions, talk to a lawyer you trust and ensure that your assets are properly protected. Your Legal Sherpa® from Yeti Law can help.

Toronto Lawyer Protecting Your Foreign Assets

Either through travel and acquisition, or through inheritance, you may find yourself with real estate or a second home located in another country. You may also find that you have accumulated or inherited foreign bank accounts, or other financial assets. If you have, you must be prepared for the realities of dealing with these types of assets located in foreign jurisdictions.

Foreign laws may treat inheritance laws very differently than they might otherwise be treated in Ontario. Even seemingly subtle differences can have significant impact on how the Will may be treated. Some jurisdictions may have very specific legal language surrounding what assets can be distributed from the estate and to whom. There are some European Union regulations that preclude assets from being willed outside of a family. It’s helpful to have someone familiar with those foreign policies. Your estate lawyer at Yeti Law can help you navigate through this complex area with ease.

Foreign tax and reporting requirements may also be assessed very differently in foreign jurisdictions, and must be accounted for appropriately. Additionally, the existence of foreign creditors may affect the administration of the Will, and may need to be handled differently as per the laws of that jurisdiction.

Multi-Jurisdictional Wills

Administering an estate containing foreign assets can prove more complex and more time consuming than it otherwise would if foreign assets weren’t a concern. A careful strategy designed with the help of an experienced lawyer, like your Legal Sherpa®, can help to simplify the process. One of the best ways to protect assets in foreign jurisdictions is through the creation of multiple Wills. A multi-jurisdictional approach allows for those foreign assets to be more easily managed.

Through a coordinated approach, legal work in one jurisdiction can be done independently in different jurisdictions. This can significantly lower costs, as it reduces travel between jurisdictions to perform administrative tasks. It also leverages the legal, accounting, and taxation expertise of qualified local representatives. Your Legal Sherpa® has the experience with multi-jurisdiction Wills to ensure that your best interests are protected, and can draft a solution that fits your specific needs.

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Family Trusts & Other Trusts

Trusts are most often designed for the benefit of children, to protect them in the event of the death of parents or guardians. These are called testamentary trusts, and they don’t come into effect until they are activated by a death. Testamentary trusts need to be properly planned and drafted well in advance by an experienced trusts lawyer, like your Legal Sherpa® from Yeti Law. A testamentary trust is an excellent tool for protecting your loved ones in the event that you are no longer able to do so.

Why Create a Family Trust?

Trusts, at their most basic, are legal arrangements set up by one person to benefit another. There are three people, or parties, making up the arrangement: the first person (the settlor), transfers property to another (the trustee), for the benefit of a third (the beneficiary). There are a number of reasons to use a trust, such as:

  • Trusts offer great flexibility: a variety of different types of assets may be placed in trust
  • Trusts offer great privacy: a trust does not need to be registered and becomes valid as soon as it is signed
  • Tax saving opportunities
  • Creditor protection
  • An excellent way to provide for the children of a previous marriage

Designing a Family Trust: Using the “Family Worksheet” to Create the “People Plan”

The Family Worksheet is a charting tool, unique to Yeti Law, which allows your Legal Sherpa® to visualize and better understand family relationships. The Family Worksheet allows us to prepare a People Plan of the individuals who are the most suitable agents to administer the trust. Both our clients and our Legal Sherpas® have found the Family Worksheets and People Plan to be invaluable tools.

Trustees should be people who are trusted enough to make decisions on behalf of children, otherwise they may be assigned to the care of an agent whom you would not necessarily have selected. It is important to give discretion over funds to a trusted agent whose beliefs and values line up with your family values. Trustees should also be chosen who are willing and able to act as trustees when the time comes, and the trust should be planned to accommodate for the possibility that trustees may not be able or available to act.

Trusts can be powerful tools, but there are certainly pitfalls that come from improperly designed or poorly drafted trusts. For this reason, when designing a trust, it is very important to reach out to an experienced and knowledgeable trusts lawyer, like the team at Yeti Law.

Inter-vivos and Living Trusts

In addition to testamentary trusts, there are a number of other equally useful types of trusts. Inter-vivo trusts, or living trusts, can also be used to protect assets and take advantage of tax benefits, but are not hinged on the death of the settlor. This type of trust makes use of a trust’s ability to transfer ownership of assets to others. Trusts of this type can also be highly flexible, and may be useful for income splitting and estate freezes. Living trusts can also be used to set up charitable donations or in providing for someone with special needs. Speak to your Legal Sherpa® about living trusts and other types of trusts that may be available to you.

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Powers of Attorney

A Power of Attorney helps others speak on your behalf when you are unable to do so for yourself. Power of Attorney for Personal Care and Power of Attorney for Management of Property can be combined in one document or be in separate documents and can even have different attorneys appointed in each.

Power of Attorney for Management of Property

A power of attorney is simply a document which grants an individual of your choosing the power to act on your behalf. In the case of a power of attorney for management of property, it’s a document which grants an individual power over your financial affairs.

At Yeti Law, our strength is in people and relationships. We have tools in place to help you make the best possible choices when it comes to the appointment of someone to act on your behalf with power of attorney. You will need to appoint someone you trust not to misuse the authority you grant over your financial affairs, but also you need to trust that you’ve appointed someone who can account for the decisions they make with regard to your property. You can also choose to assign power of attorney to more than one person, and you can (if you choose to do so) specify the division of responsibilities for those you assign, giving them the power to act separately, otherwise they would need to agree in order to move forward with any decisions they make in their cooperative role.

Power of Attorney for Personal Care

A power of attorney for personal care authorizes the holder to make personal decisions regarding your health care or housing for you if you should find yourself incapable. Wishes regarding “heroic measures” or life support are often, but not necessarily, set out in a separate document known as a Living Will rather than being included in the power of attorney for personal care document. The true importance of this type of power of attorney assignment is in its power to remove the burden from your loved ones who would otherwise be forced to make life-saving (or life-ending) decisions on your behalf.

Much like with a power of attorney for management of property, it’s vital that you select someone capable and trustworthy with power of attorney. This is where your Legal Sherpa® excels: making that selection may be the single most important decision you make in this process, so it makes sense to seek the help of someone with the experience to help you evaluate your options.

Reviewing your Power of Attorney Selections

In the case of either type of power of attorney, it’s important to remember that much like the rest of the documents which make up your Forward Plan, the appointment of power(s) of attorney shouldn’t be considered a decision to make once and then forgotten until needed. It should be regularly reviewed with a trusted lawyer like your Legal Sherpa®. Relationships can change, and someone you deemed trustworthy or competent may not remain so. Your Legal Sherpa® makes a point of reviewing your Forward Plan documents at regular intervals to ensure that the documents contained therein most accurately capture your wishes at any given time.

If you are interested in donating organs or tissue and need additional information, please visit: http://www.ontario.ca/health-and-wellness/organ-and-tissue-donor-registration

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Living Wills

The thought of not being able to make decisions on your own behalf can be frightening. If you’ve ever considered the possibility that illness or injury may leave you in a state of incapacity, then a Living Will is likely something you’ve investigated, and if it concerns you, then it’s definitely something that should become part of your Forward Plan.

A Living Will (sometimes referred to as an Advance Care Directive) is a document meant to communicate your wishes regarding care, treatment, and even housing if you are unable to do so, or if you no longer have the capacity to make reasonable decisions. It lets the attorney(s) for personal care know for how long, and in what circumstances, you wish to be kept alive. In Ontario, it is of persuasive value but not necessarily binding on the person to whom it is addressed.

It should be noted that a Living Will is not the same thing as power of attorney. A power of attorney is a legal document in which you grant an individual of your choosing rights to act on your behalf. In other words, a power of attorney document clearly defines the “who” within a legal document. A Living Will is not concerned with the question of “who,” only in outlining the preferences concerning treatment and care, and is not required to follow any specific legal formatting. A Living Will for example, is often used to outline the circumstances in which an individual may or may not wish to be kept alive by artificial means. A Living Will can be included as part of a power of attorney document. This combined document is sometimes referred to as a proxy directive.

What’s the Difference Between a Living Will and a Last Will & Testament?

Keep in mind that a last Will and testament is not the same as a Living Will. A Living Will, as the name implies, concerns itself with decisions made for your welfare prior to (rather than after) your death. In most cases, having a last Will and testament does not mean that your preferences for health care while still alive are documented. One similarity shared between the two Wills is that both should be periodically reviewed and revised when necessary. Opinions, feelings, and relationships will change over time, and those changes should be reflected in your living will just as they would be reflected in your will. Your Legal Sherpa® makes a point of reviewing and revising your Forward Plan documents regularly.

Your Legal Sherpa® from Yeti Law specializes in guiding you through the legal landscape, and in simplifying and personalizing the process. This is especially important when traversing such uncomfortable ground. No one particularly relishes the thought of living in an incapacitated state, or for that matter putting the responsibility onto loved ones of making life or death decisions. A Living Will removes the burden from loved ones, and is important to ensure that your wishes are respected even if you aren’t able to directly communicate them to your family or physician.

Legal Sherpa® Tip

Never make assumptions regarding those to whom you grant power of attorney. You should always check that the person you name as your Attorney to make Healthcare Decisions for you is willing and able to follow your wishes. Even your closest friend can have deeply held values that can clash with your own wishes.

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Wills

A will is an exceedingly important document, especially for those with children. Dying without a will can have long-lasting impact on those you leave behind, and removes any control you might have otherwise had over the distribution of your estate after your death. This may lead to your estate being distributed amongst those you might not have wished to benefit, or it may lead to dispute, or simply long delays in your beneficiaries receiving their due.

Your Legal Sherpa® is committed to making the process as simple and straightforward as possible. We have the experience and the tools to help you clearly identify, and then clearly articulate your goals and concerns. We do this to help you reduce the potential for disagreement or dispute. We will help to ensure that minor children are taken care of in a way that lines up with your value system. We will work to reduce income and estate administration taxes while also looking to protect your estate from creditors and predators.

Naming an Executor

Even a seemingly simple decision such as naming an executor or estate trustee can come with unforeseen consequences, but your Legal Sherpa® is there to help you find the most suitable and trustworthy candidate. Your executor will, first and foremost, need to be willing, able, and capable of fulfilling the duties of executing your estate. Your executor will also likely be the most important element of your will when it comes to review and revision. Will the named party still be willing? Will they still be capable? It’s a crucial role, as you will be trusting someone with a great deal of responsibility, effectively giving them control of the estate and leaving them to distribute the estate amongst your chosen beneficiaries.

How do you Know if it is Time to Update your Will?

It is always a good idea to revisit your Estate Planning (what we call Forward Planning) documents when life changes occur. Significant life changes can easily alter your family or financial situation, and subsequently alter the way your will might be read, or invalidate it altogether. We invite you to schedule an Equipment Check and Journey Planning Meeting with a Legal Sherpa® lawyer in order to course correct for changes such as:

  • Changes to your financial situation
  • Death or disability of those named as trustee
  • Divorce, marriage, separation or addition of a child occurred
  • The launch of a new business venture
  • the creation or invention of new intellectual property
  • Significant accumulation of valuable goods, such as a collection

REMINDER: You cannot alter your Will(s) by crossing out or adding something new. Any handwritten change could invalidate your Will(s).

“Forward Planning” vs. “Estate Planning”

At Yeti Law, we prefer to use the term “Forward Planning” instead of the more traditionally used “Estate Planning” terminology. Forward planning refers to planning for life, including its potential for disabilities and death, which is a dynamic on-going process in an ever-changing environment. At Yeti Law, we want to be part of your ongoing journey, we want to help you in the creation of your plan, and also in the revisions and changes which will be required as life changes occur over time.

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Probate

Death is already a stressful time for surviving family, and sometimes dealing with the estate only serves to add to that stress. The goal of your Yeti Law Legal Sherpa® is to guide you and provide assistance without adding to your stress during this difficult time. One topic that commonly causes confusion is the question of probate.

Probate simply describes a legal process intended to validate or “prove” a Will. Proof meaning that the Will is duly recognized as the uncontested and legally valid last Will and testament. Probate is often (though not always) a first step in the process of executing a Will.

Those faced with the death of a loved one and the administration of a Will commonly ask: “is probate necessary?” While it’s not necessary in all cases, it’s often difficult to know at the onset. It’s really a question best answered by meeting with a trusted expert like your Legal Sherpa®.

When is Probate is Necessary?

In some circumstance, probate isn’t required. Some assets do not require probate in order to transfer ownership – assets such as jointly held land, or registered savings and investment accounts with named beneficiaries, or life insurance. In these and other cases a death certificate is sometimes all that’s required.

In other cases, probate is mandatory. Probate may be required in the following scenarios:

  • Probate is sometimes a required and necessary process to transfer ownership of land or other property from the name of the deceased.
  • Probate acts as an assurance for banks, brokers, and land registrars that they are receiving legal directives. It’s meant to dispel any concern that those institutions may have with regard to executing the terms of the Will.
  • Probate offers clear and decisive legal proof that the executor has the right to act on behalf of the deceased.
  • Probate can act to protect the estate by imposing strict time limits for claims filed against the estate.

Avoiding Probate

There are times when it may be beneficial to avoid probate, which is possible to account for in advance with proper Will and estate planning by a knowledgeable estate lawyer.

Probate can be a lengthy and expensive process; it can take months, sometimes years, and in the process ties up property and assets, even if the Will isn’t being contested. There are also fees associated with probate that can drive up costs. Additionally, a Will in probate will become a public document, accessible to anyone inclined to look for it. Understandably, some may feel that privacy is a more pressing concern than probate.

Sometimes a multi-layered approach is called for. It’s possible to draft multiple Wills so that you can include assets that don’t need to be probated into specific Wills. Speak to your Legal Sherpa® to design an approach that is right for you.

Appraisal of Assets

For estates entering probate, the personal property of an estate must be inventoried and assigned a monetary value. Asset appraisal is a mandatory step in the probate process. All assets, including cash assets such as bank accounts and registered investment accounts, must be appraised alongside non-cash assets such as real estate, vehicles, jewelry, and other property.

There are a few different reasons why appraisals are required. One important reason is taxation. Only once the overall value of the estate has been identified can the appropriate tax be applied. Also, only by assessing the value of all property and assets can a correct and equal division of assets be calculated for distribution to heirs or beneficiaries.

But assessment can be a difficult process. Emotional connection to property or assets can make them difficult to assess fairly, which is why it’s best to seek the assistance of an experienced professional, like your Legal Sherpa®, when you are faced with making appraisals for probate.

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Will and Estate Assets Review

Having a Will and a Living Will can provide you with a sense of security. It can feel good knowing there is a plan in place for the worst possible scenarios. But a Will should be more than a single document written once and then set aside until needed. Wills should be regularly reviewed and updated to reflect the kinds of life changes we all experience.

When to Review Your Will

At Yeti Law, we use the term Forward Planning to encompass our ongoing approach to estate planning. Your estate plan should reflect your current life situation as accurately as possible. It should be reviewed periodically, and it should be updated as required to reflect any significant life changes. At Yeti Law, it is our practice to regularly review Wills and estate plans with our clients every three years to ensure accuracy. Over time, relationships, goals, priorities, and desires may change, all of which should be reflected in your Will.

There are significant life changes that should automatically trigger a review of your Will:

New Children, New Relationships

The birth of children should act as an automatic alert that you should either draft your Will, or review an existing Will. As life relationships and friendships change, you may also wish to see those changes reflected in your Will. You may find that an executor may no longer be willing or able to act on your behalf, and if so, you should move to find a more suitable executor.

Moving

A move represents a significant life change, and your Will should reflect your most current home and property ownership. You will especially want to revise your estate plane if you move to a different province, or different jurisdictions.

Your Fortunes Change

Windfall, inheritance, business success, or any other sudden influx of wealth should lead you to review your Will immediately. Similarly, negative changes in income due to changes in employment, illness, or injury should also be reflected in your most up-to-date Will.

Divorce or Death of a Spouse

Divorce, by definition, changes the nature of the relationship you have with your spouse. Your Will should be amended to reflect this new relationship. The death of a spouse represents another unwelcome change, but it becomes an important time to revisit your estate plan, as your Will may need to name new beneficiaries, trustees and/or guardians.

Change of Heart

It’s entirely natural for us to feel differences in our feelings towards our personal relationships in life. Changes in those relationships should be reflected in your Will as quickly as possible. You may also find your interests change over time. Perhaps you have developed an interest in charitable giving later in life. Once again, your Will should reflect this change.

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Title Insurance

Title insurance is a form of insurance that serves to protect the property owner against unforeseen, potentially expensive problems related to the property’s title. “Title” in this instance simply refers to the true ownership of property. Property ownership can already carry with it enough stress, but the fear of some unforeseen title expense can really make it a terrifying prospect. Title insurance can help assuage those fears as you become a property owner.

Title insurance is not actually a legal requirement in Ontario, so the decision is one you should discuss with a lawyer you trust, like your Legal Sherpa® from Yeti Law. The benefits of coverage, especially when weighed against the cost of title insurance, usually make it an appealing option. In some cases, you may be required by a bank or lender to purchase title insurance if you are using a mortgage to finance the sale.

Title insurance isn’t a missed opportunity if you didn’t buy it at the time you purchased your property. You can purchase title insurance even for a home you already own.

What Does Title Insurance Cover?

Title insurance can be purchased for both residential and commercial properties, but for residential properties, there are two types of title insurance: Owner’s Policies, and Lender’s Policies. An owner’s policy (as the name implies) covers the home owner for as long as you own the property, and is priced based on the value of the property itself. A Lender’s Policy will protect the lender for the duration of your mortgage, and is priced based on the value of the mortgage.

Title Insurance covers a fairly extensive list of risks and liability, including:

  • existing liens against the property
  • fraud
  • surveying errors
  • errors in public record
  • property tax arrears
  • other title-related issues that can prevent sale, rental, or mortgage of the property

What is Not Covered by Title Insurance?

It is important to note that title insurance will not cover every possible problem that you may encounter. It is not a home warranty, and shouldn’t be treated as such. Issues such as damages, disrepair, and theft won’t be covered. It also won’t cover any additions or renovations you happen to add to the home. You may also encounter:

  • Native land claims
  • environmental issues
  • problems discovered in a new survey of the property
  • zoning violations

Even though title insurance isn’t a catch-all, most real estate lawyers consider it more than worth the cost of purchase, as the coverage is still very broad and can prevent very expensive issues down the road. Modern privacy laws now make it much more difficult and expensive to research a property, so title insurance prevents unwelcome surprises that cannot easily be found via the research possible today.

Making a Title Insurance Claim

If you think you have grounds for a claim, contact your Legal Sherpa® immediately. Your Legal Sherpa® from Yeti Law can assist you in the filing of your claim, and help you to do so as soon as possible. If you have questions or concerns about coverage, your Legal Sherpa® can help you to determine if your Title insurance provides coverage for your claim.

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