Celebrate Good Times

For many people, a major change in your life is a time for celebration. Maybe you recently got married or had a child or won the lottery. First of all, congratulations! Secondly, while this is a time for celebration, it is also an important time to check your will. You might not think to do so, but many major events in your life can impact your will.

A change in your marital status can significantly impact your will. If you get married, any existing will that you have has now been revoked (unless that will specifically states that the will is made in contemplation of your marriage to that individual). This means that your existing will is treated as though it no longer exists. Similarly, if you get divorced, any existing will that you have has now been revoked. Separation from a spouse does not revoke a will, meaning that your spouse can inherit under your will and could still be appointed as your executor.

It is also important to keep track of your assets in case those substantially change. If this is the case, your will might have to be updated to reflect these changes.

So if you just went through an exciting major change in your life, celebrate it, but also get your will updated if its necessary.

A secured credit line is still a mortgage

Be aware. If you’re selling, and you have a credit line that you borrowed against your house, this must be paid off. Factor it in to your bottom line so that you’re not shocked when the closing date comes around. And if you’re buying, be prepared to see it get registered against your new home – you get that nice low interest rate because your house is security. Legally speaking, it’s a mortgage, and the bank will treat it as such.

Where is your will?

Florence Griffith Joyner was a famous and highly decorated Olympic athlete. She made a will. She told everyone that she made a will. She figured that she had done what she needed to do.

The problem was, she didn’t tell anyone where that will was.

When she died, no one could find the will. It’s entirely possible that it’s still sitting in a lawyer’s office, or that she locked it away in a safety deposit box at a bank she used for nothing else. And in the end, after a years-long fight between her husband and her mother, a third party was appointed as the executor.

It doesn’t matter whether you’ve made a will if your executor and beneficiaries can’t find it.

What does title insurance do?

In a recent real estate post, I discussed the need for a survey and why, often, it’s not as critical as it once was. The main reason for this is because of title insurance.

Title insurance, in a nice syllogism, insures your title. Basically, it protects you against issues that could come up to affect your ownership of the property that you did not or could not have found out about before your bought it – things like unregistered easements on your property, or encroachments from your neighbour’s property, or a prior owner doing work without a permit that would have normally not been permitted by the municipality. It also covers for fraud, in the event that someone impersonates you and puts a fake mortgage on your property or tries to sell it.

If you are getting a mortgage, you will almost always be required to get title insurance. Even if you aren’t, it’s usually a good idea – it’s low cost, and can give you peace of mind.

Fraud by Power of Attorney

A few weeks ago, two people were charged with defrauding an elderly woman in Clearview Township. They managed to commit the fraud through an abuse of a power of attorney.

There is a specific Criminal Code offence of theft by power of attorney. Section 331 of the Code states:

“3 Every one commits theft who, being entrusted, whether solely or jointly with another person, with a power of attorney for the sale, mortgage, pledge or other disposition of real or personal property, fraudulently sells, mortgages, pledges or otherwise disposes of the property or any part of it, or fraudulently converts the proceeds of a sale, mortgage, pledge or other disposition of the property, or any part of the proceeds, to a purpose other than that for which he was entrusted by the power of attorney.”

If you sign a power of attorney, it is very important to choose the right person to act for you. While none of us can control what that person ultimately does, the most important first step is picking someone who will always keep your best interest in mind – and not treat your money as their bank account, or decide to take what they consider their inheritance a little early.

Common law is not married

Period. End of story. In Ontario, common law spouses may be able to sue an estate for support, but they have no automatic right whatsoever to inherit if there is no will. It is harsh, but it is the law. If you are not legally married and most assets are not in your name, your partner needs a will or you will be left out in the cold.

Do you need a survey?

The answer is, sometimes.

If you can get a survey, they’re very useful. They can tell you all sorts of things – the legal limits of your property, whether there are any hydro or sewer lines, if there are any easements, even the proper location of a fence or your house. Often, however, a new survey isn’t available when you buy a house, if a survey is available at all.

If you are buying in an urban centre, the likelihood is that you don’t need a survey. It’s nice to have, to see where your lot lines are, but any encroachments from neighbours or easements that were never registered would usually be fully covered by your title insurance, so it’s not critical to have a survey up front.

Where it becomes more complicated is if you’re buying in a more rural area, and particularly if there are any questions about access to your property. Having a right-of-way to use someone else’s property to access your own can be a difficult matter to deal with; if it turns out that the travelled road is not where the legal description says it should be, the other owner doesn’t have to let you continue to use the travelled road. And then you could get stuck with no access to your property.

If you’re buying a subdivision house in town and there’s no survey, talk to your lawyer but you probably don’t need to worry. If you’re buying anything out of the ordinary, you may want to think twice before agreeing to not have a survey.

Plan for conflict, and hope it doesn’t happen

A recent TD Wealth survey found that 44% of planning professionals believe that family conflict is the biggest threat to estate planning today. And I think that’s absolutely correct.

In my personal experience, the estates that have the most difficulty are the ones where the parties don’t get along. Even if everything is being managed perfectly and properly, personal conflict will lead one party to hire their own lawyer, and sometimes even to start a lawsuit against the estate. Sometimes this even happens between executors who can’t get along. It wastes a huge amount of time and money that should be going through the estate to the beneficiaries.

The best advice that I can give if you must choose more than executor one is to choose executors who will get along, and to tell your beneficiaries ahead of time what your plans are. Processing it all now means fewer problems down the road.

Don’t Forget Your Furry Family Members

Many of us consider our pets to be members of our family. Some have taken this idea even further, actually left their entire fortune to their pets on their death. An example of this is Karlotta Leibenstein. Ms. Leibenstein was a German countess and multi-millionaire who left $80 million to her dog, Gunther III. This fortune was inherited by Gunther III’s son, Gunther IV, who is now worth over $400 million. You can read more about Gunther IV and his luxurious lifestyle here (he owns a property in Miami that once belonged to Madonna). While you might not be able to leave your pet millions of dollars, you can set up a pet trust for them in your will.

Under Ontario law, pets are considered as property. As such, your executor will have the right to decide what happens to your pets. Your executor would have the power to choose where your pets go and can even decide to take them to a shelter or put them to sleep.

If you do not have a will, you will not be able to decide who will care for your pets after your death. The courts will appoint an executor for you. This person will be chosen from the members of your family who step forward to act as executor. The person that the court chooses might not be the person you would have chosen to act as your executor.

One way to protect your pets is to put a pet trust into your will. A pet trust will arrange for any pets to be cared for after their owner’s death. By planning ahead, you can ensure that your furry family members are cared for after your death.

Signing paper in a digital world

You’ve completed your offer and any signbacks over email, by signing it electronically. Then you get to the lawyer’s office and see a stack of paper. What’s up with that?

In Ontario, lawyers must have original documents signed on paper.  While it might be nice to sign everything electronically, we can’t do that unless the laws are changed.

Yes, we use a lot of paper. Unfortunately, we have to.