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.

Do you know how to pass on your digital assets?

Many of us don’t see a whole lot of (if any) monetary value in our digital assets – there’s not much to gain in a Facebook or email account. However, there is always a possibility that there could be significant value to a digital asset, and either you don’t know, or your executor doesn’t know.

Do you have a gaming account? What about money stored in an eBay or PayPal account? A blog that creates defined value for your business? An e-commerce site? Music or video files purchased through an online store such as iTunes? Most difficult of all, digital currency, such as Bitcoin?

There is currently no law in Canada that allows your executor to access any of your digital assets. If you have anything at all that you would want your executor or beneficiaries to have access to, you must have a will.

Review Before You Sign

Most purchasers and sellers send their agreements to their real estate lawyer after the agreement has already been signed. At this point, it is typically too late to amend or get out of the deal. This is why it is important to have your lawyer review the agreement prior to signing.

If your purchase or sale agreement is conditional on lawyer’s review, then your lawyer can go through the entire agreement. Through this review, a lawyer can determine whether any changes should be made. Without a review clause in the agreement, the purchaser and seller are bound by the terms in the agreement. A review of the agreement can address issues at the outset of the real estate transaction, saving you time and money.

This is particularly true with the purchase of a property which has not been built or with the purchase of a condominium. These types of purchase transactions tend have lengthy agreements. Having a lawyer review these documents means that all the details are examined thoroughly.

The purchasing or selling of a house is one of the largest transactions that you will make in your life. Why not have a lawyer with expertise in this area review your agreement?

No Laughing Matter

In August 2003, Canadian high school student Mike Rowe registered the domain name MikeRoweSoft.com. He thought that since his name was Mike Rowe it would be funny to add the word ‘soft’ to the end of it. It was not so funny when Microsoft brought trademark proceedings against him.

Last week I wrote about the additional name protection that a business has upon incorporation. Incorporated businesses can take this name protection one step further by trademarking their name. Trademarking a name allows you the right to initiate trademark proceedings against another person or business to prevent others from using the same business name as yours. This applies not only to business names, but also domain names.

Microsoft initiated trademark proceedings against Mike Rowe, claiming that the domain name infringed on their trademarked name. This was because the name MikeRoweSoft was phonetically similar to Microsoft. Microsoft demanded that Mike Rowe give up the domain name and offered to pay his out-of-pocket expenses, being the $10 he spent to register the domain name. Rowe countered with an offer of $10,000. Eventually both parties reached an out of court settlement. Under this settlement, Mike Rowe stopped using the domain name MikeRoweSoft.com. In exchange, Microsoft provided access to several of their paid courses and websites and sent Mike Rowe an Xbox.

While it might seem harsh that Microsoft went after a high school student, they had to protect their trademarked name. Trademark does provide a business with extra name protection, but only if it is exercised. Microsoft did so in this case to protect its name and reputation.

Severing ties

I had a potential client call me this week about a property he owns with his wife, from whom he had recently separated. They are working through their separation agreement, but in the meantime, he felt uncomfortable leaving their house in joint names, as he wanted his share of it to go to their children if something happened to him, rather than going to his wife.

It’s not commonly known, but it is possible to sever a joint tenancy with no notice to the other owner. You sign a deed from yourself to yourself, and now you are tenants in common; if you die, your share now goes through your estate, rather than to the other owner.

 

It’s usually best to let your co-owners know what’s going on. But if you need to sever ties quickly, you can get it done on your own.

Without proper advice, mistakes are all too easy to make

I see it all the time – people look on Google, find something that seems to make sense, and follow it through without getting advice from a professional. And then, when the action they took turns out to not have the same result in the place where they live as it did in the place where the blogger or journalist lived, they end up paying way more than they would have to just leave things be. Here are some common ones:

  1. Not naming a backup beneficiary for life insurance or registered investments. It’s great if you’ve named your spouse, but what if you die at the same time? Naming an alternate (or contingent) beneficiary means that this money will pass outside of your estate, and not be taxed.
  2. Gifting property (including adding a child to your deed). Always, always, always get advice from a lawyer and accountant before doing this. There are more dangerous than can be stated in a blog post.
  3. Designating registered investments through your will. This can be set up properly, but there is a specific way to do it – if you’re not using a lawyer, you can run into a lot danger, and end up with taxes owing on them because they accidentally pass through your estate.
  4. Putting severe restrictions on inheritances in a will. More often than not, they’ll be found to be invalid.
  5. Leaving assets to minor or disabled beneficiaries without setting up trusts. They could squander the money, or they could lose valuable benefits. It’s always best to have a professional do your will; it’s vital if your beneficiaries need any assistance at all.

This is a complicated area of law. Be careful.

Can I get a witness?

When preparing your own will, it is easy to overlook some legal formalities that could cost you (or others) much more than you think. One of these is having proper witnesses for your will.

It is a requirement to have two witnesses to witness your signature on a will. If this requirement is not met, it would require a court application to determine if the will is valid. If the will is not valid, then a previous will or intestacy laws would determine who inherits.

There are also restrictions as to who can be a witness on a will. If you are a beneficiary under the will and you are also a witness on the will, the gift that was left to you as beneficiary is no longer valid. This offers protection for will drafter in case the beneficiary is forcing you to sign the will. While it might not be your intention, you could prevent someone from inheriting their gift, or they could have to take legal action to inherit under the will (costing them money).

Under a holograph (handwritten) will having witnesses is not a requirement. This type of will can come with its own set of problems though in relation to witnesses. A handwritten will must be entirely written in your own cursive handwriting (not typed, printed or handwritten by another person). Your handwriting must then be properly identified by someone, which could require previous writing samples or could even involve hiring a handwriting expert to identify your handwriting. All of this would be submitted under a court application to validate the will, costing more money.

All this said, using a lawyer to draft your will provides you with an expert who can avoid these legal pitfalls and help save you money in the end.

What’s in a Name?

If you are thinking about incorporating a business, one of the advantages is the ability to reserve your chosen business name. When you incorporate your business in Ontario, your business name is reserved for use in the province. When you incorporate your business federally, your business name is reserved for use throughout Canada. Sole proprietorships and partnerships do not have this protection, and anyone can start a business with the same or a similar name to your business if you are not incorporated.

Incorporating your business can also offer you additional name protection through a NUANS name search. This search lists similar corporate names and trademarks across Canada to ensure that the searched business name is not currently reserved by another corporation or is not confusingly similar to another corporation’s name. A NUANS report also reserves the proposed corporate name for 90 days, ensuring that no other corporation or trademark can register under a similar name in that time frame. More information on the NUANS report can be found here.

Electronic deals

In Ontario, except for a tiny (less than 1%) fraction of properties across the province that have major title issues, all real estate is done electronically. A lawyer who is licenced to do real estate law in Ontario can close a deal anywhere in the province. So, if you’re moving to or away from a city, and you want to use the same lawyer for both deals, you can.