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The reality about making a will is that…we do not like to think about our own mortality. No one likes facing the fear of death as many of us do suffer from death anxiety. Estate planning, unfortunately causes us to face this vital reality – but it should not be seen as a bad thing. Rather, it’s imperative that we confront our fears associated with death and mortality and prepare our estate to protect our loved ones and children. Remember, estate planning isn’t only for the rich – or for people with high net worth – the process does not have to be expensive. The majority of the estate plans that we do are for people like us – people or couples with a mortgage, a home, car payments, kids, activities…people who lead a fairly simple life.
Making a will is a process that can save much hardship and confusion for survivors upon death. It’s absolutely necessary to ensure that your estate is settled according to your wishes – and even more important to make sure that your children are taking care of according to your wishes. If you die without a will, the law says that you die “intestate” meaning that you did not leave instructions on how you like your property to be distributed at the time of your death or who your kids should be left with and how you would like them to be raised.
Matt Lalande has been involved in estate planning as a part of his personal injury and wrongful death practice since 2003. Dealing regularly with fatality and wrongful death claims, Matt has become experiences in drafting estate plans for surviving spouses as part of his legal services. Also, as an extra service,, Matt has been drafting estate plans for personal injury claimants after their case has concluded, for nearly 20 years.
Matt has drafted hundreds of estate plans, confidentially, for friends, work colleagues, collegues in the medical community, legal community, family members and people throughout the Hamilton, St-Catharines, and Halton communities for many years. Although it’s difficult to think of one’s own mortality, it’s even more difficult for your family to sort out your affairs if you pass away unexpectedly without an estate plan – especially if you have children. Calls today at 905-333-8888 and we would be more than happy to help with the planning of your estate today.
The power to name a guardian – and even a backup guardian for your minor children can be especially important to parents. The power for a parent to name a guardian for their minor child or children comes from S.61 of the Children’s Law Reform Act. The one thing to remember is that the appointment of a guardian is a temporary appointment which only lasts for 90 days. Pursuant to the statute, on or before the expiry of the 90 days – a court application must be brought for an order made by a Judge, formally appointing a guardian. Despite the temporary nature of the appointment however, it is still extremely necessary and useful to name a guardian for your minor kids as it is strong evidence of your opinion of who you want your kids to be raised by. The Court will absolutely take your wishes into consideration should the application be challenged.
Remember, only a parent that has sole custody has the power to name a guardian in their estate plan. The naming of a guardian may not be effective if you have joint or shared custody. Also, it would be important for you to think about a backup guardian. Often times, young parents want to name their own parents (i.e. the grandparents) as guardians but oftentimes this may not be a practical arrangement given that the grandparents might be of an advanced age. At some point, grandparents will pass away and the estate plan may never have been amended to name different guardians.
Quite often minor children are the designated beneficiaries of investment accounts or life insurance policies. Minor children, however are not entitled to receive funds directly.
Because of this, the funds must be received by your Trustee on behalf of your child, and kept invested for his or her benefit until the age of 18. The problem is when your child turns 18 years, depending on the size of your estate and or life insurance coverage, you could have very well unintentionally harmed your own estate planning objectives as your young child may now be in receipt of a large sum of money which he or she might not likely be responsible enough to manage. It’s important that your wishes on distribution of your estate is well thought through, as 18 may be much too young. With this in mind, most parents will want some form of trust created within their will for their minor children which specifies the age of inheritance. The standard age of gift distribution varies according to your assumptions about when your children will be capable of managing their own money – although many will use the traditional ages of 21 or 25 – which would approximate when the children could be expected to have completed their education and started their own independent life. Unless it is for tax planning reasons, it is very unlikely that clients will want funds held for their children and trust past the age of 30. Our Hamilton estate planning lawyers will work with you on creating this testamentary trust in order to identify the proper age in which your estate should be distributed by your estate trustee to your children.
If your child or children suffer from a disability, then you no doubt have unique circumstances to deal with in the context of your estate plan.
It’s important that when you plan your estate, you take into account the lifelong needs of your child or children with special needs. For example, if your child suffers from Down’s Syndrome or a serious psychiatric disorder such as schizophrenia or schizoaffective disorder which would prevent him or her from being capable of managing his or her affairs (or, at risk of not being able to manage his or her affairs at some point in his or her life) then your estate plan should incorporate the appropriate lifetime trust to protect their well-being.
Also planning for children with special needs requires consideration of whether or not your child or children may be reliant on government support. For example, many people that suffer chronic illness or disabilities are in receipt of ODSP or, the Ontario Disability Support Program. ODSP is one of the province’s social assistance programs geared to assisting Ontario residents that suffer from disabilities.
In order to qualify for ODSP, a claimant must be 18 years old, an Ontario resident, be in financial need, and meet the program’s definition of a person with disability. Financial need is demonstrated with respect to both assets and income. Because of this, parents of disabled children frequently know that they want a Henson Trust – which is most likely been described to them by associations or government workers. A Henson Trust is simply convenient way of referring to a fully discretionary trust set up for the benefit of a disabled person in receipt of ODSP payments. A Henson Trust permits payments from an estate plan to children or family members with disabilities without disentitling that person with special needs to government assistance programs like ODSP. If a proper trust is not built into the estate plan, then the gift could in fact jeopardize the beneficiaries receipt of ODSP benefits, depending on the size of the gift (or whether it is considered an exempt asset or is included in income for the purposes of ODSP).
Remember, an estate plan does not have to be expensive. Long gone are the overly expensive hourly fees and outrageous legal accounts for drafting estate plans. Call us today for more information at 905-333-8888 or fill in a contact form, confidentially and somebody from our office will get back to you shortly.
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