Mean girls in assisted living

I have to admit that I've never really thought about seniors bullying each other. This article from the New York Times is really excellent and opened my eyes to a new issue. Click here to read it.

Asking questions on a lawyer's blog

Recently I had this question from a reader, and I thought I'd answer it here in a post because it applies to many of you:

"I've asked a couple of questions without getting a response. Am I doing something wrong or are the questions too complex for the blog format?"

Nope, you're not doing anything wrong!

But you do make a very good point about the complex questions. Sometimes the questions readers leave me very complex questions. If I were to meet that client in person in my office, I would ask a dozen or more questions before offering any opinion on what to do. I worry that if I give an answer here on my blog that is based on less than the full facts, a reader might act on that answer to his or her detriment.

It's often clear that the readers are trying to give the full facts. That's why their questions are so lengthy. But they don't always know which facts are relevant. I'm reminded of this occasionally when I go to the doctor and he asks me something that seems totally unrelated to my medical issue, but that turns out to be vital information.

Occasionally the question is simple but the answer is complex. Those I will eventually answer. Many are, as we speak, sitting in draft form while I wait for a chance to look up a section number of a statute or the name of a book or a person.

Lack of time is sometimes an issue for me, and I'm not the world's best time manager in any event. In addition to working full time, I write a book a year. I travel a bit with my work and do close to fifty seminars, media interviews and articles a year as well. So, I get behind on things, blog posting included. I love to get reader questions though I am the first to admit that it sometimes takes me a long time to respond. The questions are very valuable to me, as I feel I'm having a conversation with people and hearing what they are truly concerned over and worried about. If I can help anyone with the information and ideas I post, so much the better.

There are a few questions that I'll probably never answer. Those would be the ones where someone is letting off steam about family members involved in an estate. There's nothing wrong with a good venting. I do it myself. But I think some of these people might regret what they've said once they calm down, and if I put the questions out there on the internet, it won't help matters.

I hope this helps. Thanks for being patient.

Sandwich generation left in a pickle

If you or someone in your family is struggling to manage work, kids and aging parents, you certainly don't struggle alone. Welcome to the sandwich generation. Click here to read an article from Las Cruces Sun-News which contains some revealing facts, and some advice from a certified senior advisor.

Estate planning: it doesn't have to end this way

Looking for a little nudge to get you going on your estate planning? This article from http://www.lakeconews.com/ just might do the trick. Click here to read it.

Re-building Slave Lake's public library

I read in today's Edmonton Journal that the public library in Slave Lake was destroyed when wildfire burned down one-third of the town recently. Other libraries are collecting books to re-stock the library and are holding and cataloguing the books until the Slave Lake library is up and running again. Click here to read the story from the Journal.

I'm going to give them two copies of each of the four books I've written. The public libraries have always bought my books and made them available to readers, so it seems only fair to help them replace the ones they lost.

The attached photo appeared in the Edmonton Journal courtesy of CTV News Edmonton.

The conversation of a lifetime

This week I had a conversation with a client who wants to leave his estate almost entirely to charities. His estate is in the tens of millions of dollars. The reason I felt so lucky to be talking with him is that he is thinking of doing "something for seniors" and was casting around for ideas. I actually got to give suggestions that I felt would improve the lives of seniors to someone who was openly listening and was prepared and able to take action on those suggestions.

So far he likes the idea of building affordable homes that are purpose-built for those with mobility issues and other physical limitations. He also likes the idea of advancing financial literacy for seniors and supporting programs that provide seniors with practical information and help.

He isn't looking for praise or thanks or recognition. He just realizes that he has a huge opportunity to improve the lives of thousands of people. I regularly speak with wealthy clients who want to give to charities (Canadians are definitely generous givers) but I don't recall any who specifically wanted to benefit seniors.

I'd sure like to have dozens of clients with this area of interest and similar means of support. However, I suspect I'll probably never have another!

Do you know someone raising a grandchild?

I received this notice today from the National Initiative for Care of the Elderly:


May 26, 2011 
CANGRANDS Community Information
Do you know of someone who is raising a grandchild, niece or nephew? Or perhaps they are denied access to a grandchild?
In Ontario some 22,000 children are living full time with kinship caregivers (usually a grandparent).

CANGRANDS has 25 kinship chapters to support you; as well, we are looking for folks to start up new local kinship chapters. KINSHIP support is only an email or call away.
If you could sponsor a kinship family to attend camp or help with an auction item please let me know asp.

CANGRANDS NATIONAL KINSHIP SUPPORT http://www.cangrands.com/ 2580 Hartsmere Road
McArthurs Mills Ontario K0L 2M0 Betty Cornelius grandma@cangrands.com or
613-474-0035 or cell 613-334-4255

"When the Wisdom of the Grandmothers is Heard the World will Heal."
--Native American Prophecy

National Initiative for the Care of the Elderly (NICE) Initiative nationale pour le soin des personnes âgées (INSPA)
222 College St., Suite 106
Toronto, Ontario M5T 3J1 Canada
Phone: 416-978-0545 Fax: 416-978-4771
http://www.nicenet.ca/

Is it time to revisit your choice of guardian?

Wills lawyers are always telling their clients to review their wills from time to time to make sure that everything in the will still meets their needs. The choice of guardian is a crucial reason to revisit your will from time to time, as the example in this attached article describes. Click here to read it.

Family Funeral Business Reaches 100 Years - In Pictures

Do you like family business success stories as much as I do? If so, click here to see an article from http://www.capitalmagazine.ca/ about the Edwards family business in Saskatoon.

Does your money go to your children, charity or CRA? Pick two.

This article from http://www.capitalmagazine.ca/ discusses how Canadians are looking for ways to build charitable giving into their estate plans. This definitely accords with my own experience, as many clients, both wealthy and not so wealthy talk to me about their plans to leave money to charities or to charitable foundations. Click here to read the article.

Amazon Alert: Alberta Probate Kit is now available to be ordered

Thanks for being so patient. Amazon advised me today that the Probate Kit is available for ordering. Click here to order.

Why holding the family cottage in a trust can make sense

The question about how to pass the family cottage on to the next generation continues to generate quite a bit of discussion. I found the attached article from Tim Cestnick of the Globe and Mail really useful. It explains the benefits of holding the cottage in a trust while you're alive. Click here to read the story.

Alberta's new Wills and Succession Act - part 2

Our new law dealing with wills and estates is expected to take effect in Alberta in January of 2012. It's bringing big changes to this area of law that will affect all Albertans. In Part 1 I talked about the right to stay in the family home temporarily after the death of a spouse who was the only owner of the house. In this post I'd like to talk about a major change to our law of intestacy.

Intestacy refers to dying without a valid will. If you die intestate, the law says who gets what from your estate. Currently we have a formula that divides the estate between the spouse and the children. I'm personally quite happy to see this part of the law changed as I don't think it was working well for modern families.

The new law says that when a husband or wife (either legally married or common law) dies, and all of the children are their joint children, i.e. no step-children, the entire estate goes to the surviving spouse. The children don't get anything from the estate, but the idea is that when their second parent dies, he or she will pass down the estate to them.

The law provides for something different when a deceased has children from previous relationships. When a husband or a wife (legally married or common law) dies and the spouse who died had at least one child from a previous relationship, the surviving spouse does not get the whole estate.  The spouse will get a "preferred share" and the rest will go to the deceased's descendants.

The preferred share is going to be either 50% of the estate or the amount set by regulation, whichever is larger. The regulation isn't in place yet, but is supposed to be in place by the time the new law comes into force in January. The amount set by the regulation is probably going to be $150,000.

Remember that these are the rules that will apply if you should die in Alberta without a will. You can maintain control over what happens to your estate and have things set up the way you want them by making sure you have a valid will in place.

World Elder Abuse Awareness Day June 15, 2011

The National Initiative for Care of the Elderly is hosting an event in Toronto on June 15, 2011. It will feature an international forum on sexual safety for older women (a human rights approach).  They have an impressive roster of speakers and subjects lined up, apparently with more to come. Check out the notice below to learn more.

 

World Elder Abuse Awareness Day June 15, 2011 -Toronto

Wed, Jun 15, 2011 9:00 am to:5:00 pm

WORLD ELDER ABUSE AWARENESS DAY 2011 TORONTO – CANADA
International Forum on Sexual Safety of Older Women- A Human Rights Approach 

Toronto will be giving focus to an under-reported, silent and insidious form of abuse - the sexual abuse of older women. Historically, older people have never been considered potential or actual targets of sexual assault and as a result have been under-identified and under-served as victims. With the limited knowledge and awareness of this form of elder abuse, the most effective strategy to serve older victims of sexual assault is to bring together professionals in victim’s services and in the aging fields to shed light on this issue.

WHO SHOULD ATTEND – Government, NGO’s, elder abuse prevention networks, crime and victim services, health care providers, residential care providers, legal services, social worker networks, and the media. Register Your Interest Today. Cost is only $60 (+HST) for the Forum and Delegate Reception. For Flyer click here.  For Registration of Interest Form click here. For draft Program click here.

Hosted by the International Federation on Ageing and Ryerson University, in Collaboration with the Ontario Seniors’ Secretariat, this one day interactive International Forum is an opportunity for the governments of Canada, service providers, practitioners, professionals and those dealing in elder protection to hear from a number of internationally respected experts in the field.

CONFIRMED SPEAKERS AND DISCUSSANTS: (MORE TO COME)
Dr. Holly Ramsey-Klawsnik, of Klawsnik & Klawsnik Associates – Massachusetts USA
Prof. Pamela B. Teaster - Associate Dean for Research, University of Kentucky - USA
Ms. Ferdous Ara Begum – United Nations Committee on the Elimination of Discrimination against Women (CEDAW) – Bangladesh
Dr. Helen Jones – PhD, Principal Lecturer in Criminology, Manchester Metropolitan University, UK
Mr. Jamie Howie - Provincial Adult Protection Consultant, New Brunswick, Canada
Ms. Judith Wahl - Executive Director and Senior Lawyer at the Advocacy Centre for the Elderly (ACE)
Dr. Laura Mosqueda MD - Director of Geriatrics, University of California, USA
Dr. Lisa Manuel, Director of Family Service Toronto’s Changing Lives and Family Violence Programs – Canada
Ms. Carol Goar – Editorial Columnist and Canadian Journalist with the Toronto Star
Ms. Dominique Predali – Journalist and Author of "Twelve Angry Geriatricians", France
Additional information, program details and speaker profiles will shortly be available on the IFA website at www.ifa-fiv.org
IFA - 351 Christie Street, Toronto, ON, M6G 3C3 CANADA

Primary Contacts and Co-Chairs - Mr. Greg Shaw (Tel:+1-416-342-1655) - Email: gshaw@ifa-fiv.org and
Dr Elizabeth Podnieks (Tel: +1-416-925-7674) – Email: elizabeth.podnieks@utoronto.ca
For more details visit http://www.ifa-fiv.org/

WEB SITE: (files/Draft_Conference_Program_English.pdf..)

Ex-wife inherits IRA - OUCH!

As much as estate-planning disasters make me wince in sympathy for both the deceased and the survivors, real-life examples are pretty vivid reminders of what not to do. This story from American lawyer Kyle Krull is one of those awful but instructive ones. Though the story is American, if you substitute "RRSP" for "IRA", the principles are identical here in Canada. Click here to read it (and I highly recommend that you do read it if you have an RRSP or RRIF and have been divorced).

Trusts for minors are flexible enough to suit almost any purpose

Children who inherit under the wills of their parents or grandparents cannot legally receive the money until they reach the age of majority, so their funds are held in a trust until that time. In other cases, a trust may be established until a child reaches a higher age, or until some other contingency occurs.

In this post I'm not going to extol the virtues of trusts in general. That's a post for another day. Today I want to talk about how flexible trusts can be.

One area in which flexibility allows you to tailor your trust to your specific needs is defining when a beneficiary will receive the funds in trust. As mentioned already, any age, as long as it is at least the age of majority, may be chosen. The funds don't all have to be paid at the same time, and many parents like to stagger payments to their children over a number of years. For example, a trust in a parent's will might state that the child will receive 1/4 of her inheritance at age 18, a further 1/4 at age 21 and the balance at age 25. Or the parent might stipulate that the funds be paid out in equal annual instalments for, say, ten years.

Another area of flexibility is encroachment, or the taking of money on an as-needed basis in between the set payments mentioned already. For example, if the child in the previous paragraph needed money at age 20 to attend university in another country, perhaps she could have an advance on her inheritance. At the time the will is made, the parent can decide which kinds of things (e.g. medical, educational, emergencies) are important enough to allow for encroachment.

Other contingencies may be added. For example, I've written a number of trusts in which a child receives a greater sum of money each year if she is attending university or college full time than she would if she did not attend school. I've also written trusts in which children are given a large lump sum on their wedding day.

When a family has younger children, the funds in trust can be funnelled out to the guardian of the children on a monthly basis to provide for the child's share of household expenses. This helps to prevent the family who takes on the children on the parent's death and acts as guardians from experiencing a financial hit because of the children.

The parent also has the flexibility to name a trustee for the trust. It can be the same person as the executor, or someone completely different. If the trust is going to be a long one, such as holding funds to age 25 for a grandchild who is only 3 years old currently, the parent may choose a trust company for the job.

The benefit of the flexibile nature of trusts is that it allows parents to address specific situations. Trusts are not all the same because families are not all the same. The parent can use trusts to express his or her goals for the child, such as allowing for tuition fees to be paid. The trust can protect a child who has made a foolish marriage at a young age by holding the money in a trust that can't be touched by the spouse or lost in a divorce settlement. The parent can prevent a child from "blowing" her inheritance by receiving it before she is responsible enough to handle it.

A divorced parent can use a trust to ensure that any funds left to the child will not fall into the hands of the former spouse.

It's very easy to set up these trusts in your will. Any experienced wills lawyer can write a good trust that anticipates all realistic situations.

Storing your documents in a safe place

Last week I met with some clients to review their existing wills. I met them in their bank branch because they planned to take the documents out of the safe deposit box at the branch, and it would be convenient for all of us to then meet right there. However, when they opened the box they discovered their documents weren't in it. I was concerned, but they assured me that really the documents could be anywhere, they really couldn't remember, and they had only guessed that maybe they'd stored them in the safe deposit box.

I wish this was an unusual situation. However, plenty of clients over the years have told me that they really can't remember where their original wills were being kept. This is troublesome, since it seems to me that if the client himself can't locate the will, there isn't much hope that the executor will ever find it.

The bank safe deposit box is a good place to store important legal documents such as your original wills. Perhaps these clients intended to store theirs there but never got around to it.

Other good storage places are the vault at your lawyer's office (if they offer that service - not all wills lawyers do), the vault at your trust company or a locked safe in your own home.

Less appropriate (but unfortunately still popular) storage places are: an unlocked cabinet in your home, your sock drawer, in the trunk of your car, under the mattress or in the freezer. When someone hides their will in a safe place that nobody but he can find, he forgets that when the will is needed, he's the only one who won't be around to say where the document can be found.

Wherever you choose to store your will, you should choose a place that keeps your document safe from fire, water, theft or loss. It's also important to protect it from nosy people who have no business reading it. Balance the need for safe-keeping against the need for the original document to be found once you have passed away.

At the time your will is made, there will be only one original document. It might be a good idea to photocopy the will and write on the copy something that indicates the location of the original. Then years later when you take out your copy to refresh yourself on what's in your will, you will also remind yourself of where it's being stored.

Asset Distribution not Hollywood-style!

The attached article mentions that many people believe they should make a will giving away their estates asset by asset. I agree that many do think that, and that it's almost never the best way to proceed. Click on the link below for some common sense advice from lawyer Donna Neff.

Asset Distribution not Hollywood-style!

My rant about paralegal services

I noticed this morning that somebody has put notices up all over my neighbourhood advertising a paralegal service. This service apparently offers several services to the public, including wills, pardons, and buying and selling of real estate. If only the people who tear off the phone numbers on the bottom of the notice had any idea what a terrible idea it is to call a service like this.

Think about it. These people aren't lawyers. They have no training and don't know the law any better than you or your friend or your next door neighbour. The only way they get around charges of practicing law without a license is to get you to sign a paper saying that you know they're paralegals, not lawyers.

So what do they actually do for you? They get forms and fill them in for you. They charge you money for that. And that's it.

They don't offer any advice (and if they did, they'd be charged with practicing law without a license). Their knowledge is limited to the use of the form. They can't help you if things go wrong. They don't offer you any protection or damage control, even though the fact that you've used a paralegal and not a lawyer hugely increases your chances of something hitting the fan. They don't carry malpractice insurance. They can't spot legal issues and identify them for you before they become problems. Why would you even pay anyone for that? You might as well just download the form yourself from the internet and do it yourself.

Perhaps this is enough for something like obtaining a pardon for a criminal offense. After all, a form is all that's required. But real estate? And wills? The concept of a will as a fill-in form is dangerous and so misleading.

Basically they are relying on calling themselves "paralegals" instead of "people with forms we'll fill in for a couple of bucks" to fool you into thinking they have skills they don't. A paralegal, by definition, works with a lawyer and is supervised by a lawyer. Funny though, no "paralegal" companies I've run into are associated with any lawyers.

Dental hygenists do their work under the supervision of a dentist. A paramedic eventually turns his patient over to a doctor. A paralegal is supposed to be on a team with a lawyer, for the protection of the client.

There's no governing body or licensing body for paralegals in Alberta, or in most provinces for that matter. Paralegal programs in our colleges train people very well, but they are trained to work with lawyers. So with no controls, absolutely anyone can download some forms then hang up posters calling himself a paralegal.

I'm always completely amazed at how willing people are to take chances with legal issues. The medical equivalent is meeting a guy in the mall who is selling re-packaged aspirin off the shelf and telling you he's curing your migraine. He's not helping you. In fact he may even be hurting you by making you think you don't need to see a doctor who could diagnose you with what's really going on.

Ok, I'm ranting, I know. But it totally burns me up to see good people use services like this and end up with huge, costly, upsetting estate litigation years later because they didn't realize the consequences.

Maybe I'd feel better if I tore one of the phone numbers from the bottom of the poster and called up these "paralegals" myself to rant at them...

Keeping a will helps put worries to rest

This new article from the Calgary Herald talks about some reasons to have a will made, and refers to the fact that our wills law in Alberta will be changing in early 2012. Click on the link below to read the article.

Keeping a will helps put worries to rest

Don't let the taxman into your cottage

I'm pleased to see this article by Patricia Lovett-Reid of the Financial Post, because too few people consider the tax consequences of buying and selling a recreational property. Click here to learn more about this important subject.

The importance of beneficiary designations

Naming a beneficiary for certain assets is an essential part of your estate planning. It's important to understand how the beneficiary designations will work with your will, your joint property and your intentions. This article from http://www.capitalmagazine.ca/ talks about the types of assets that should have designated beneficiaries, and their importance. Click here to read the article.

Friday Funnies - Dilbert estate planning cartoon

Thanks to Rania Combs of Texas Wills and Trusts Online for the laugh!

Alberta Probate Kit is here!

I received my author's copies today, so you know what that means - they are being shipped to the stores as we speak! Click here to buy a copy from the publisher (available May 25). Click here if you want to get a copy from Amazon.ca when they receive their copies. Otherwise you'll be able to pick one up from Chapters stores soon.

Brits turn to the net for estate planning

Where do you get your estate planning information and advice? The fact that you're reading this blog puts you in the group that turns, at least in part, to the internet. According to the attached article, more people in Britain use the internet to research and plan their estates than use any other source other than lawyers. I don't know of any statistics about Canadian users but wouldn't be surprised to see similar numbers.

The internet can be a fantastic source of information, particularly if you are short of time or work odd hours or are not very mobile, because the internet is available at all hours. There are some drawbacks though.

The first drawback is the quality of the source. Let's face it, anyone can put up a webpage and call themselves anything they want. Any time you use an internet source you should evaluate the source as fully as you can. For example, there is one blog that I checked out a few times because the topics interested me, but the posts themselves appeared to be written by a child. One thing I noticed is that they referred to "anointing" a trustee rather than "appointing" one. Other posts had similar mistakes and they did not appear to be translation errors. It's no big deal if a client use the wrong word now and again, but a person putting himself or herself forward as an expert in something should know what the words mean.

The second drawback is the applicability of the information. Are the contents of the webpage applicable to you specifically? For example, Canada, the US and the UK have very different tax systems, so it is a mistake to rely on information from a source outside of your geographical area.

A third drawback is understanding how the information impacts you. There are some webpages and blogs I've read that are so technical and intimidating, they make my eyes glaze over. It's easy to misunderstand whether something applies to you if it's full of legalese or industry jargon.

Even though I am one of the people who puts information out there on the web for people to use, I still recommend that people see a lawyer for estate planning unless their estate is absolutely straightforward. This means that you should talk to a lawyer about your planning if you have children, a handicapped family member, a business, a blended family, land in a foreign jurisdiction, jointly owned property with anyone, or dual citizenship. If you want to leave money to a minor, a handicapped person or a charity, or you are considering any kind of trust, you should speak to a lawyer. If you are doing anything unusual such as treating your children differently or cutting someone out of the will, you should speak to a lawyer. I recommend this so that you will end up with a document that will carry out your wishes.

I always hope that the people who read my blog (and thanks to each and every one of you for coming back so many times!) will use it as a source of ideas, and a way of deepening the knowledge they have found elsewhere.

Click on the link below to read the article.


Brits turn to the net for estate planning Easier

Who Administers the Estate When There's No Executor?

Megan Connolly, a Toronto lawyer, has posted a brief but useful discussion about who is in line to be appointed as an administrator of the estate of someone who dies without appointing an executor. Click on the link below to read the article.

Who Administers the Estate When There's No Executor?

Do you know what you're getting into when you agree to be an executor?

Paul McLaughlin of Turning Point Law in Sherwood Park, AB, was recently interviewed by the Edmonton Journal about being an executor of an estate or power of attorney.  Paul is a lawyer and teaches a course called "So You've Been Appointed an Executor". He's also one of the nicest people I've ever met. Click here to read the article, particularly if someone has asked you to act as their executor.

As a related comment, please remember that if you are acting as an executor and are completely overwhelmed (because of time, geography, demanding beneficiaries or simply because you are devastated by the loss of your loved one) you can call a trust company to step in and help you immediately. Click here to find out more about that.

The attached photo of Paul (left) and son Andrew McLaughlin is from the Edmonton Journal.

All the right heirs

This post from Toronto Estate Law blog summarizes a report that talks about the issues involved in determining who are the correct beneficiaries of an estate. It's pretty interesting stuff, particularly when you look at the percentage of estates in which there appears to be an unknown beneficiary. Click here to read the article.

I'm not surprised to see that so many executors have trouble figuring out who is supposed to be a beneficiary and who is not. Blended families, adoptions, second marriages, estranged siblings... they all make it tough to know how to apply the law.

Judge disallows executor's fee for manipulative, deceitful executor

Executors who are being careless or deceitful and not properly looking after the estates they are supposed to protect should read this case. So should beneficiaries who are suffering at the hands of that kind of executor and wondering whether there is anything they can do. In this case, the executor "breached her duty of honesty and utmost good faith, was prepared to simply cut a cheque to pay out a claim against the estate without any investigation into its merits, and was prepared to use the threat of destroying the testator’s beloved pets as a means to try to extract benefits for her friends and herself".

I'm talking about the recent Ontario case of Re Watson Estate. The court got it exactly right, in my view, by refusing to allow the executor to receive a fee and ordering her to repay the fee she had already taken. To read a description of the case on the All About Estates blog, click here.

Another update on Alberta Probate Kit

I received an email this morning from my editor, who says she has received the advance copies of the Alberta Probate Kit. This means the actual book; it's no longer just a manuscript! Now copies should be in the stores very soon. Thanks to all who have emailed, called or left me notes here on my blog to say they are patiently (or in some cases impatiently) waiting for the kit.

Four ways to motivate someone who is reluctant to make a will

Many of us have a loved one who simply won't make a will or incapacity documents (power of attorney and health care directive). The reluctance is generally not due to cost or the unavailability of legal advice, but is more due to emotional or personal reasons. This can be a real problem when the loved one has family issues, significant assets, a family business, cottage or blended family. It can even be a problem where there are no contentious issues.

How can we motivate a reluctant person to get on with estate planning and incapacity planning? Here are some ideas:

1.  Make it clear that estate planning is not something that is done just by rich people or those with complicated lives. Show that it's something we all should do. For example, point out something that has happened to a neighbour, friend or family worker, such as being admitted to hospital without anyone being in charge of health care decisions. Mention that the problem could have been avoided with some basic planning and use this as a springboard to a conversation about whether your loved one has put plans in place.

2.  Sometimes the reluctance can be due to not really knowing where or how to start, and you can help to kick-start it. Do your own planning and mention it as a positive experience that has led to peace of mind and a better understanding of your family issues and finances. Offer to refer your loved one to the lawyer or advisor who helped you.

3.  Appeal to the protective parent in your loved one. Point out that will planning is not talking about dying. It's talking about making sure your children will be looked after once you're gone. It's about making sure that you don't leave issues or problems that are going to cause disputes between them. Any parent who had the means to prevent a life-altering fight between the kids would probably do so if made aware of how to go about it.

4.  Invite your loved one to a seminar being put on by a local lawyer or financial advisor that will cover estate planning. Follow up with a coffee date or lunch to talk over what you heard at the seminar and encourage your loved one to plan his or her next steps in getting documents in place.

Choosing CPP start date requires the whole picture

Retirement planning takes a lot of calculating and planning. One of the factors that must be considered is CPP retirement benefit, particularly as the plan underwent some changes this year. Click here to read an article from the Globe and Mail about taking your CPP start date into consideration.

How to make a bigger donation for less money

This article from the Globe and Mail discusses the logistics of planned charitable giving, and how to make that large gift more effectively than you thought possible. Click here to read the article.

Executors are forever

A while ago I had a question on this blog from a reader who looked after his father's estate almost forty years ago when his father died. Recently an asset came to light that nobody knew about at the time his father died.

This situation could happen to any one of us who acts as an executor. Your executorship doesn't have an expiry date or a time limit. The reader in the situation described here is just as responsible for dealing with the newly-discovered asset as he was for the house and the bank account at the time his father died.

Once you start acting as an executor for an estate, you keep that job until you die, lose mental capacity or are dismissed by the court. Most people never take the step of being dismissed by the court because there is no reason to do so. That step is generally taken if the executor needs to step down for some reason (such as severe illness) or there is an estate dispute that causes the judge to remove the executor.

If an asset comes to light later - even if it's not forty years later - your job as executor is probably going to be harder than it would have been if you'd been able to deal with all of the assets at once. Beneficiaries of the estate may have died or moved away. You may have to file additional court documents. There may be tax implications for an asset that has been gaining in value for several years.

And of course beneficiaries may be ticked off at you for not giving them their inheritance back when they feel they should have received it.

If you've passed away yourself by the time this asset comes to light, your own executor will have to deal with it, in addition to dealing with your estate. Bet they'll be happy about that.

The moral of the story? Check every reasonable lead you have when tracking down the assets of the estate. It's better to spend ten minutes sending a letter that comes back with a negative answer than not to send the letter and years later spend hours or days backtracking.

Thoughts on LegalZoom and Unauthorized Practice of Law

Though this story is American, it applies equally well to us in Canada. This particular article is one that I agree with in almost every respect, as talks about both the dangers of using a fill-in form for a will and the fact that some unqualified lawyers are just as bad as the forms.

No matter where you stand on the debate, this article is informative for consumers and food for thought for lawyers. Click on the link below, which goes to http://www.deathandtaxesblog.com/.

Thoughts on LegalZoom and Unauthorized Practice of Law

Friday Funnies - Health Care Directives

In honour of it being Friday (the 13th no less), I'm sharing with you this cartoon about Health Care Directives. Yes, it's true, you can be light-hearted about such serious topics without the earth opening up and swallowing you. Then go and get your documents prepared. Thanks to Rania Combs at texaswillsandtrustslaw.com for the cartoon.

Passing on the family cottage - Part 1

This article is part 1 of 2 about the challenges of leaving your family's vacation cottage to the next generation. The author, Elaine Blades, does a great job of capturing the thought process (or lack thereof) of many people who are in this position. Click here to read the article. I'll be sure to post part 2 when it appears.

Business valuation 101: What's goodwill worth?

Talk about something that business owners really need to know! Many business owners who are interested in selling their business to retire really don't know how to put a dollar figure on goodwill. This article from capitalmagazine.ca addresses that question. Click here to read it.

Who gets the house? Estate planning don'ts from celebs

It's good to know that the rich and famous are as vulnerable to mistakes as we mortals when it comes to estate planning. To read an entertaining list of what not to do as illustrated by the estates of some late celebrities, click here to read this article from dailyfinance.com. The attached photo is also from that site.

The difference between a will and an estate plan

This morning I met with a client to review his current will and talk about his estate plans. His goal was to ensure that if he passed away before his wife and she then remarried, his children would still inherit at least a large portion of his estate. Given that his estate is almost $20,000,000, I can see why he's concerned. To achieve his goal, his will says that if he dies first, his wife gets half of the assets and the children get the other half.

But what he wants is not going to happen. It can't. How do I know? Because almost everything he owns(home, vacation home, investments) is held jointly with his wife, giving her a right of survivorship. His RRSP names her as the beneficiary. Therefore she is going to get all of those assets automatically when he dies, no matter what his will says.

So what is he leaving to his children? Only about $50,000 using his current will. This doesn't come anywhere close to achieving what he wants.

This situation is a perfect example of the difference between a will and an estate plan. It's all very well having a will in place, but it's essential that you talk it through to make sure it really does apply properly and fully to your assets and goals. Everything has to work together, otherwise a will is just a piece of paper. In this client's case, his joint property and beneficiary designations are working against his will.

When this client and I are finished, he will have a proper estate plan. This may involve changing ownership of some assets or creating a family trust or one of several other options. It will take a few more hours of talking and considering and building. When the new will is signed, it will be just one part of a comprehensive plan that ensures my client's goals for his wife and children are reached.

Why you should think twice about joint ownership

I've often posted articles of my own and from other sources about joint ownership. The bottom line is that people use joint ownership as a type of home-grown estate planning, not realizing that they are creating a disaster. I've got some support for this point of view from the Globe and Mail's Tim Cestnick. Click here to read this article in today's Globe.

Business succession planning how-to videos

Scotiabank's "Get Growing for Business" webpage for small business owners has a series of four videos aimed at helping you sell your business. They cover topics like valuing your business and negotiating the sale. You can watch one or all of them online by clicking here. There are plenty of other good articles there too.

How to make a plan for your personal effects

My experience over the years has been that more estate fights happen over personal items of the deceased than happen over money. Sure we all like money but it's the personal items that have the sentimental value. This article from About.com talks about ways to plan for the eventual division of your personal items. I really suggest that everyone read it because few people put enough thought into what will happen with their jewelry, photo albums and family heirlooms. Click here to read it.

Partial sale of a business allows owners to have their cake and eat it too

I received this notice from my friends over at Ambergate Group/Western Business Brokers. It talks about two ideas, but the one that I thought would be of particular interest to business owners considering their succession planning is that of selling part of the business but staying involved. It's referred to in this article as the "have your cake and eat it approach", and that seems an appropriate title. Click here to view the article.

Decision-making by trust companies

Ever wonder how decisions are made when the executor is a trust company? In this article, Elaine Blades gives you a peek into how things are done. Click here to read it.

Estate Planning Through Family Meetings still ranked #1 on amazon.ca

I'm soooo pleased to tell you that even though my book "Estate Planning Through Family Meetings (Without Breaking up the Family)" has been in the stores for one full year, it is STILL ranked #1 on Amazon.ca in the "law books/practical guides/wills" category. It's ranked #2 in the "law books/tax/estates and trusts" category. 

This book was the direct result of questions from my customers, readers, colleagues and friends about how to talk to their family members about sensitive matters like death, money, and mental incapacity. In particular, people wanted to know how to make estate planning collaborative, co-operative and non-threatening. So you can see that your comments and questions on this blog and in my seminars are definitely being heard!

My sincere thanks go to everyone who has bought this book, checked it out at the library or recommended it to a friend.

The challenges and consequences of inheritance

Does receiving an inheritance have a down side? You bet it can. A lot depends on the actual asset you receive and whether you have to deal with your siblings or others when you receive it. Click here to read an excellent, common-sense article from Yahoo Finance that talks about dealing with a large inheritance.

Remember a loved one with a commemorative bench or tree

Did you know that you can set up a lasting reminder of a loved one by having a park bench dedicated to them with a bronze plaque? Or have a commemorative tree planted?I've had several clients ask me about this plan.

Click here to see Edmonton's Benchmark webpage. Click here to see Toronto's Commemorative Tree and Bench webpage. Click here to see Calgary's Bench Dedication webpage. Click here to see Vancouver's Commemorative Donations webpage. Click here to see Winnipeg's Donations Program webpage. Click here to see Regina's Legacy Program webpage. Click here to see Ottawa's Commemorative Tree Program webpage.

Options for seniors diminish along with capacity

When anyone signs estate-planning documents such as wills and Powers of Attorney, the law says that the person must have the mental capacity to understand the consequences of signing the document.

An individual with full capacity can choose to sign - or not sign - any document. He has has full control over where his assets will go by signing the will that addresses his wishes. He is free to deal with his own money and property without interference by anyone else. He chooses who will look after his estate as executor, and who will act for him if need be under a Power of Attorney.

Unfortunately many seniors experience diminishing capacity. For most, it's a gradual process. As the loss of capacity progresses, legal options disappear, one by one. One of the first problems might be an inability to deal with money. This may manifest as anything from difficulty shopping for groceries to falling victim to a scam artist. The option to deal with his money as he sees fit gradually disappears, and the senior must have help. With any luck, he can still sign a Power of Attorney with the option of springing it into action when he needs it. In the meantime, he can rely on special bank accounts and informal help from family members.

As capacity continues to diminish, the need to have the Power of Attorney activated increases until eventually the senior must relinquish some or all of his control to the person he named as representative.

If the senior didn't act soon enough, there might not be a Power of Attorney in place. Once capacity declines, the option to prepare that document is gone. If the senior needs help with money, it's possible that a trustee might be appointed by the courts. Not only has the senior lost the option to prepare the document, but he has also lost control of the decision of who is to be his representative and what powers that representative will have. The process is imposed on the senior even if he doesn't want it. For some people, this means that all financial decisions are taken away.

The problem experienced by the senior might not have to do with money. It could well be a diminishing ability to live alone and complete daily tasks like cooking, shopping or getting around town independently.

With full mental capacity, living options are restricted only by finances. As abilities diminish, the senior must seek out help, which could be, for example, a housecleaner once a week, a nurse who comes to the house to help with shots or medications, or someone to drive the senior to appointments. At this point, the senior still has the option of signing a representation agreement or other supported decision-making document that appoints someone to help the senior with personal matters.

If capacity continues to diminish, the senior might have to rely on a Personal Directive (aka Advance Directive, Health Care Directive) that gives the chosen person full control over certain personal matters such as where the senior lives and which doctor he sees.

If the senior hasn't prepared a Personal Directive and has lost capacity, it could be that someone will have to apply to the courts to become the senior's legal guardian. At that point, the senior has lost all control over decisions.

While an individual has mental capacity, he or she can decide who is to be the executor of his or her will and who is to inherit. All options are open. If the senior didn't make a will while that option existed and dies without a will, the government decides who is in charge and who is going to inherit the estate.

The key to successful planning is to start early enough, while you're still mentally healthy and all your options are still open.

Dogs lose again in Helmsley estate

Obviously I wasn't part of the estate-planning process of the late Leona Helmsley, but I've watched the resulting fights over her estate with interest. I doubt anyone is really surprised that there's fighting, given that she left an enormous fortune to her dog. I often wonder whether her lawyer thought this was a good idea or whether he/she advised against it. The gift to the dog was struck down by the courts.

Now there has been renewed fighting over the money controlled by her trustees. Click here to read the story from Personal Wealth Law News.

Ten common estate-planning mistakes

This article from Lancasteronline.com is excellent, realistic and definitely worth reading. It's quite possible that you'll recognize yourself or someone you know in this article. Click here to read it.

Ringling Brothers heirs give new meaning to family feud

Looking at the goings-on in famous families is just like looking at our own families, just with less money and less publicity. The issues are the same. Click here to read this story about the children of the late Irvin Feld, who owned the Ringling Brothers Circus and other similar assets.

Memo to Trustees supplements your will with personal instructions

After you pass away, your will is going to be read by your family members, and possibly by others such as a lawyer, judge, probate clerk, land registry clerk and accountant. There really isn't much privacy for such a private document. But what if there are words you want to leave behind that you don't want exposed to all those sets of eyes?

For example, say you've used your will to set up a trust for one of your children to age 30 but not for the other children. The will doesn't say why you've done that, nor should it. There is no need to embarrass or upset the child by laying out for all to see what you perceive to be his failings or weaknesses.Is there a way of explaining things just to those who need to know?

As another example, what if you are leaving your young or teenaged children a large legacy but are concerned that they won't know how to handle the money once they get it? Wouldn't it be great if you could give some detailed, private instructions and instructions to the trustees of the money about what you think your kids need?

There's nothing stopping anyone from writing a personal letter to a family member to be read once the writer has passed away. In this case though, I'm talking about instructions or explanations for your executor or trustee that are specifically focused on looking after your family and your estate.

Most wills contain the bare bones of the testator's wishes. I have always liked to put a little more information in wills to explain anything unusual, but not all lawyers do that by any means. This results in executors and trustees being asked to set up and administer trusts without much guidance. The legalities are simple enough: set up a trust with a certain amount of money for a certain person and pay it out at a pre-determined time. I'm suggesting that you can provide much more detailed guidance that would be helpful on a day-to-day basis.

This is done in the form of a document called a Memorandum to Trustees. This document is sometimes done at the same time as your will, and sometimes later, but in either event is kept with your will. It doesn't form part of your will, so when you pass away, even if the will is sent to the court for probate, the Memorandum is not. It is seen only by the executor or trustee.

The document is not legally binding. Think of this as a letter to the person you've named as your executor or trustee giving the background for the decisions you made in your wil, and giving suggestions on how you think things should be done.

Most trusts for children or spouses give the trustee a discretion as to how much money the children or spouse should receive. That is important from a legal point of view, but think about what that's actually like for the trustee on a day-to-day basis. Which requests for money does he grant and which does he turn down? What are the long-term goals he is trying to achieve, beyond safeguarding the money?

One of the topics I've seen covered in this type of Memorandum is a parent's wish that the children be educated as to how to handle money.  In other words, a parent who lived would have made this a priority for his children, and if he passes away, he wants his representative to make it a priority too. The Memorandum can express a general wish or instruction, or it can be as detailed as giving the name of a financial advisor the parents like.

Many parents use the Memorandum to reinforce their desire that their estates be used to fund their children's education. They talk about everything right down to whether or not the trustee should buy the children a car to travel to school.

In another Memorandum I dealt with not long ago, a husband explained that he had not named his wife as executor because she had asked him not to, and that his decision to appoint someone else had nothing to do with not trusting her or thinking her incapable of handling it. His Memorandum to the executor directed the executor to let his wife do as she pleased with the money.

There is no required form for a Memorandum like this. They may be typed or handwritten. They don't need witnesses, as they are not legal documents. They can be one paragraph or several pages. Their importance lies in the fact that you as a parent or spouse get to supplement your will in a personal way.

Materials & workshops for prevention of elder financial abuse

There are some materials available from the Canadian Centre for Elder Law that you might find useful if you are involved with financial affairs of seniors. We all know that elder financial abuse is on the rise but most of us don't really know where to start to prevent or stop it. It's fantastic to see that this organization is concentrating on educating both the seniors themselves and the community at large with these materials.

The first is Financial Literacy 101 - Protect Yourself. This is a self-contained train-the-trainer binder that allows agencies and communities to train their own volunteers to deliver educational workshops on financial literacy for older adults, following a peer education model. The binder includes the material for two workshops, as well as handouts for teaching volunteers to lead workshops. 

There are 2 workshops.  Workshop 1 is focused on powers of attorney and joint accounts, and workshop 2 discusses frauds and scams.  The trainer binder includes PowerPoint presentations for each workshop as well as participatory activities, handouts to highlight learning objectives, and evaluation forms.  The workshops were focus-tested in the Vancouver lower mainland area and have since been delivered at many locations.

The second is Financial Literacy 102 - A knowledge based approach to preventing financial abuse of older adults: a guide for professionals
This publication provides professionals who work with older adults with a general overview in relation to financial abuse of older adults as well as financial literacy and financial planning for older adults.  This publication is also intended to serve as a tool for in-house teaching of staff and volunteers.  

Click on the titles of the projects to go the CCEL website, where you will find more information. Some of the materials are downloadable from the site.

May is national Leave a Legacy month

Click on http://www.leavealegacy.ca/ to find out how you can leave a legacy, or click here to see a list of upcoming Leave a Legacy events in Alberta, Ontario and Saskatchewan.

Mom, Dad. Can we talk? Answers to top questions about discussing LTC planning

The following comes to you from http://www.michiganestateplans.com/.

Mom and Dad, Can We Talk? Answers to Top Questions About Discussing Long-Term Care Planning

Recently, the founder of Elder Law Answers, Harry Margolis, answered some questions relating to talking with aging parents or other family members about sensitive issues such as wills, funeral arrangements, assisted living and medical treatment wishes. The questions and answers are good ones, so I am passing them along:

Click here to read the article. This topic was a focus of my book "Estate Planning Through Family Meetings" so clearly I'm in favour of finding ways to have constructive family conversations on tough topics.

"Rockin the Courthouse" fundraiser

This looks like fun! "Rockin the Courthouse" is a fundraiser by Lawyers Feed The Hungry. The event goes at 7:00 tonight (May 6) at the Courthouse, 57 Adelaide Street East, Toronto. Tickets at the door. Click here to learn more about it.


Lawyers really do have a fun side you know. We just hide it well.

RESP primer

Now here's a really useful link. It goes to an article that describes RESPs and how they work, without clogging it all up with legalese or bank-speak. Click here to read this article from Canadian Capitalist.

Make sure your business isn't a one-shot deal

Is selling your business going to be part of your business and personal estate plan? If so, read this article from the Globe and Mail's John Warrillow on making your business more sellable.

Simple estate planning may not be so simple after all

This article from About.com discusses home-made estate planning such as putting kids' names on your assets. I agree with the author that this may not end up being as simple as you think. Sure, it's simple and easy to actually put it into place, but the outcome is often far more complex and expensive than you ever thought possible. Click here to read the article.

300 older adult volunteers needed for study

I just received this notice from the National Initiative for Care of the Elderly (NICE). Older adults (55+) from across Canada are invited to participate in a research study about their personal safety and experiences with mistreatment (abuse and neglect). Click on the link to learn more and to see contact information.

http://myemail.constantcontact.com/NICE-Study-Urgently-Needs-Older-Adult-Volunteers.html?soid=1103957675546&aid=slOcL4rNKEU

Will your executor be able to handle family pressures?

When you chose the executor of your will, did you specifically consider your candidate's ability to withstand family pressures and politics? If you're like most people, you didn't. In my view, this is a factor that more people need to think about.

Many people choose their child or their children as their executors without giving it any thought at all. That's probably ok if you only have one child. If you have more than one child, or if you have a blended family, you need to put more thought into it. When I push my clients to talk out their reasons for choosing a particular child, the most I ever get is that the child "gets along with" the others.

That's important, yes, but there's more to it than that.

Ask yourself some of these questions about the child that you've chosen as your executor, in each case imagining that you've passed away and your child is in charge:

• If a sibling telephoned or showed up in tears or in a rage about a perceived problem with the estate, how would your executor handle the situation?
• If a sibling is not in agreement with the others on an estate issue, causing arguments, and it appears that the problem is the sibling's spouse, would your child be able to deal with that spouse?
• If a sibling accused your child of deliberately or negligently taking estate assets, how would your child react?
• If all of the siblings ganged up on your child, demanding that the estate be done differently in some way, would your child be able to calm the group and stay in control?
• If one of the siblings took your child aside and asked for special treatment from the estate, such as a larger share, forgiveness of a debt or an advance on their inheritance, could your child stay strong and say no?
• If the estate lawyer called your child and said "we have a problem with the estate", would your child be clear-headed and confident enough to make important decisions?

When choosing your executor(s) you must consider not only what works for you now, but whether your choice is going to be a good one after you've passed away. You must consider how your executor is going to handle the job. One of the dangers is that the estate will bog down in delays and arguments. Another danger is that your executor will get so fed up, he or she will stop acting as your executor, leaving you with someone you didn't choose.

If your family is populated with strong personalities, or for any reason you worry that there will be too much pressure on your executor, consider using a trust company as a neutral executor.

Finding the right wills lawyer for you

I've suggested many times on this blog that the lawyer who helps you draw up your will should be a specialist in wills and estates. I know though, that to most people a lawyer is a lawyer is a lawyer. Most people don't realize that lawyers specialize just as doctors do.

I also know that there are lawyers out there who will make wills for people from time to time, but who really shouldn't because they don't know the area of law well enough to do a good job for the client. I'm sorry to say anything negative about other members of my own profession, but I've seen the documents myself.

So as a consumer, how do you protect yourself by finding the right person for the job?

A good way to find a wills lawyer is to ask someone you know who has just had their own wills done. There is no point asking someone for the name of the lawyer who did their divorce, incorporated their company or defended their kid's drunk driving charges. They might think the lawyer is a great guy or a nice person but that's not the question you need answered, is it?

Another good way is to keep an eye out for local lawyers who give seminars about wills, or whose articles appear in a newspaper or magazine. I've had dozens of people tell me that they called me because they liked how I sounded in the seminar. It takes a bit of the intimidation out of the process if you've already met the lawyer.

The Canadian Bar Association in almost every province and territory in Canada maintains a lawyer referral list and can help find someone in your area.

Assuming you have someone in mind, what should you ask the lawyer before hiring him or her? I don't suggest that you ask "do you make wills?" A much MUCH better idea is to ask "what kind of law do you do?" If the first or second thing on the list is wills, you're probably ok. You could also ask "how much of your practice is wills and estates?" The idea is not to get stuck with the person who does only one or two wills a year and has no real expertise.

Not everyone lives in a big city with a smorgasbord of lawyers available. If you live in a smaller centre and are not comfortable with having your local lawyer handle the matter for any reason, try to find someone in a nearby city. With electronic communication these days, it's possible that you may only have to make one trip to see the lawyer.

One other thing I'd like to add is that if you don't think the advice your lawyer gives you, consider getting a second opinion, just as you would with a medical question.

Did you mean to destroy your will?

This blog post from BC lawyer Stan Rule discusses a new case from the BC courts ( Jorsvick Estate, 2011 BCSC 528). In this case a woman told her lawyer that she wanted to make a new will but she died before she could meet with the lawyer. The woman's will was found, torn up. The case discussed the circumstances around the torn-up will, as there was no information about who had torn it up or when it had been torn up, etc. The court decided it was still a valid will. Click here to read Mr. Rule's blog post.

Family business succession planning is a process, not a one-time event

This article from familybusinessstrategies.com talks about why family business succession planning takes a long time, and why that's a good thing. Click here to read the article.

Alberta's new Wills and Succession Act - part 1

There are big changes coming to wills and estates law in Alberta. Our new Wills and Succession Act (WSA)is expected to take effect in January 2012. Over the next few weeks I'll write a series of blog posts to let you know what's coming. When you read the posts, think about whether the changes could affect you, and perhaps talk to your wills lawyer to find out for sure.

The first change that I'll tell you about has to do with a spouse having possession of a deceased person's home. In Alberta we have the Dower Act, which talks about the situation where a man and woman are legally married and the house is only in the name of one of them. If the one who owns the house dies, the other spouse has a right to live in the house for the rest of his or her life. That hasn't changed. But what about common law couples? The Dower Act doesn't apply to them.

The new WSA talks about that, which is completely new to Alberta law. It says that the spouse can stay in the house for at least 90 days after the death of the spouse who owned the house. The situation must be that:
- the deceased spouse is the one who owned the house
- it can be a house, condo, apartment, mobile home, etc
- the couple must have been Adult Interdependent Partners (Alberta's equivalent of common law spouses, and usually means they must have lived together for at least 3 years)
- the couple must have lived in the home as their family home

This isn't likely to be a problem if the deceased spouse made a will and left the house to his or her surviving spouse. But it's important if there isn't a will.

It's also important if the spouse who owned the house was in a second marriage. Often, in second marriages the spouse wants to leave his or her estate (including the house) to the children of the first marriage. If there was no right to stay in the house for a period of time, which until the new law comes into force is the case, then the surviving spouse has to pack up and get out ASAP so that the children can inherit.

Having observed first hand through my work how cold the children of a first marriage can be towards a step-parent, I'm in favour of this change. It will give a least a short breather for the surviving spouse to make plans to live elsewhere.

Is a corporate executorship the right choice?

If you've ever wondered whether a corporate executor is a good choice for you, or if you simply want to know more about it, this article from The Blunt Bean Counter (great name!) will interest you. The article won't try to persuade you either to hire a corporate executor or to avoid one, but will give information on both sides of the discussion. Click here to read it.

Boomers getting involved in parents' finances

For those of you looking for ideas (or courage) to begin conversations with your aging parents about their finances, this article from NevadaAppeal.com has some good ideas. Click here to read the article. This topic was also one of the main focus points of my book, Estate Planning Through Family Meetings (Without Breaking up the Family).