Time to Rethink your Estate Plan

Even before the COVID-19 pandemic, estate planning was top of mind at Oscar time with the fantastic movie, Knives Out. Without spoiling anything, the family patriarch in that movie does show a palpable sense of calm, knowing that he has a professionally executed estate plan in place amid the whirlwind of his unconventional day to day home life. Who doesn’t love a thriller based around the hijinks of estate planning?

Your family need not be of the dysfunctional variety seen in that film. For one to be vigilant, they must ensure firstly that they have an estate plan in place, and secondly that their estate plan is up to date.

Apparently we are all going to have a lot more time to sit on our couch for the foreseeable future. Once you have watched a few good movies, you may have some time to think about your estate plan. Here are a few topics of interest to most of our clients.

Your Executor

You may have an estate plan in place that needs updating. One of the aspects of an estate plan that requires a fresh look several times over your life is your choice of executor. The person you previously chose may have died or become elderly. Or, your minor children may now be old enough that you would trust them with being appointed. Your life and family may have become complicated such that you prefer to appoint a professional trustee to act as your executor, rather than having a family member or close friend deal with your estate.

It is often the choice of executor that people find the most difficult when putting together, or updating, their estate plan. Often, all other decisions have been made but this one causes the delays and difficulties. Perhaps, rightly so. It is a crucial decision and one not to be taken lightly. First, you need to decide whether you are picking a person close to you, whether a family member or close friend, or picking a professional trustee. Acting as an executor is difficult work and will involve a significant time commitment and possibly the navigation of difficult family dynamics. You may not want to saddle anyone close to you with that role and so you might consider the professional trustee. Professional trustees will provide a high level of service, but they charge significant fees.

If your executor has moved out of country or even out of province, you should also pick a new person to appoint. If your estate ends up with an executor that lives out of the country, that could have unexpected and unwanted tax consequences for your estate. Plus it is much easier for the executor to be in the province in which your estate will be probated.

No matter who you choose, it is ideal that you advise the person you appoint of your intention to appoint them. That person may be adamantly opposed, they may not plan to live in the province for long or there may be some other reason they are not a great fit for the task. You may not know this unless you discuss the appointment with them prior to making it.

Guardian for your Dependants

The other difficulty facing parents of minor (or yet unborn) children is naming a guardian. Of course, in two-parent homes that is less of a concern because the surviving parent will be the guardian by law. The key is to plan for the, hopefully, unlikely death of the surviving parent, or in the (again hopefully unlikely) event that both parents pass at the same time or within a short period of time.

Again, pick somebody you trust and discuss the appointment with them so they are not blindsided.

Tax Planning

The current and recent federal governments have made several sweeping changes that have rendered some tax planning tools far less effective. Testamentary trusts (basically, a trust created by a will) no longer receive favourable tax treatment and are now typically only used sparingly. The tax advantages of a family trust are now somewhat diminished. You may wish to speak to your accountant as well as a lawyer to ensure your tax planning remains current.

Alter Ego/Joint Partner Trusts

The planning options expand upon reaching 65 years old. Among other advantages, you can use an alter ego or joint partner trust to defer taxation, enhance the certainty of your plan and avoid the need to probate your estate. By avoiding probate, you avoid paying probate fees and you do not have to file an application for probate at the probate registry, which is accessible by the public.  If you or your spouse has reached this age, it may be worth speaking to a lawyer about the possible advantages of incorporating a trust into your plan.

Dual Wills

Speaking of avoiding probate fees, if you have significant value tied up in company shares you should consider drafting dual wills. The secondary will passes your company shares separately and no probate fees arise on that value. The primary will passes everything else. There are a few specific things that need to happen to ensure this scheme is effective. For example, you need to ensure you have different executors for the different wills. You would need a lawyer familiar with this tool to assist you to draft these wills.

Power of Attorney/Representation Agreement

Any comprehensive estate plan should include these two planning tools. Each allows you to appoint another person to step into your shoes and make decisions or carry out specific transactions on your behalf.

Depending on your preferences, you may grant a power of attorney to be used by the grantee while you remain mentally competent or you may draft the power such that it only takes effect when you are unable to act due to mental or physical impairments. The power of attorney may allow the grantee to carry out all manner of financial or legal transactions, such as banking, entering into contracts, retaining and instructing legal counsel. It can be as restrictive or broad as your prefer.

The representation agreement has a narrower focus. It allows you to appoint a “representative” to speak on your behalf to medical professionals to assist you with medical and end-of-life type decisions in the event you are not competent to make those decisions.

Both of these planning tools may only be used while you are alive. Once you have died, your will takes over.

While there is much going on in the world that may be capturing your attention in these strange times, it may be worth taking some time to consider the state of your estate plan. A bit of effort now can save your next of kin a lot of headache later.