Estate Planning
Estate planning is the process of planning how one’s estate will be distributed and managed after their death or when the individual becomes incapacitated.
Below are a list of services that our team of wills and estates lawyers offer to ensure your estate planning needs are taken care of.
Our Estate Planning Services
We offer a full suite of estate planning legal services:
Wills
A will, or last will and testament, is a legal document that designates how to manage your affairs and distribute your assets after death — including property, guardianship of children, funeral arrangements and more. A properly written will makes the distribution of your assets an easier process for your loved ones and beneficiaries.
Do You Need a Lawyer? Although it may seem simple, it’s best done with the aid of an estates lawyer. Your specific situation — being common law, owning a business, or having a blended family — can have significant legal consequences on your will.
Dying Without a Will: In Ontario, if you die without a will, your estate is subject to statutory provisions that completely negate your wishes. Common law spouses are not considered “next of kin” under Ontario law and are not entitled to your assets without a will. Without one, your estate passes to children first, then surviving parents, then siblings, then nieces and nephews.
Top 5 Reasons You Need a Will:
- Common law spouses have no automatic inheritance rights
- If married with children, your spouse will NOT inherit everything — only the first $350,000
- If a minor child inherits more than $35,000, the Office of Public Guardian Trustee must be involved
- You can reduce Estate Administration Tax through dual wills and trust planning
- A proposed Estate Trustee may be required to post a bond worth up to three times the estate value
Watch — Understanding Wills in Ontario: https://youtu.be/99Ca-tmeiJA
Contact Hummingbird Lawyers to schedule a will consultation.
A Last Will and Testament is a legal document that appoints who will be in charge of your estate and outlines your final wishes regarding the distribution of your assets upon your death. It names your beneficiaries, determines how your estate will be distributed, appoints a guardian and custodian for your minor children, can create trusts for minor or disabled children, and allows you to make specific gifts.
Studies consistently indicate that more than half of all Canadians do not have a Last Will and Testament — often because people think “I don’t have enough” or “I only need a simple Will.” But you don’t know what you don’t know.
How Dying Without a Will May Affect Your Common-Law Spouse: Your common law spouse does not have the same entitlements as a legally married spouse. Ontario’s Succession Law Reform Act does not include common law partners in the definition of spouse. Nowhere in the Act does it consider a partner or common-law spouse to receive any part of your estate — meaning they could be left with nothing.
What About Your Children? If you do not appoint a guardian and custodian for your minor children, it may lead to disagreements between family members. You may want one person responsible for day-to-day care and another responsible for financial decisions — but if this is not specifically outlined in your will, a judge will decide.
Adult children also need to be considered — children from a previous relationship, children with disabilities, children living outside Canada, or situations where money was advanced to one child and not another can all create complications if not properly addressed in your will.
Contact Hummingbird Lawyers to schedule a will consultation.
A corporate will (also known as a secondary will) is a special estate planning tool for business owners with an interest in a privately held company. The primary driving factor for having a second will is to avoid the probate requirement and therefore the Estate Administration Tax.
How It Works: As a business owner, you can have two separate wills:
- Primary Will — covers your personal assets and goes through probate
- Secondary/Corporate Will — covers your corporate shares and is designed specifically to avoid probate, allowing you to transfer shares to a new owner or beneficiary without being subject to the probate tax, which is calculated based on the fair market value of those shares at the time of death
Real estate property owned in Ontario can also potentially be included in the secondary will, increasing the tax savings further.
Things to Keep in Mind: Before drafting a corporate will, seek legal counsel to determine if it is the right choice for your situation. While it can reduce probate fees, it may not always be a significant enough reduction to make a difference — but for many business owners it absolutely is. Our Wills & Estates team can sit down with you, crunch the numbers, and determine the best course of action to protect your estate, your business assets, and your loved ones.
Contact Hummingbird Lawyers to get a quote or schedule a consultation.
Power Of Attorney
A Power of Attorney is a legal document that appoints a specific person to “step into your shoes” and act on your behalf if you are unable to do so.
- General Power of Attorney — can only be used while you are mentally capable
- Continuing Power of Attorney — can be used even if you become mentally incapacitated
- Can be for general use or specific to a one-time purpose such as selling a property
- Can become effective immediately or upon a contingent event such as your doctor declaring you mentally incapable
Do I Need Two Powers of Attorney? Yes. We recommend having a separate POA for Property and a POA for Personal Care. The person best suited to manage your finances may not be the same person best suited to make your medical decisions.
Key Facts:
- A Power of Attorney is no longer valid after you die — your Last Will and Testament takes over at that point
- A Power of Attorney is NOT the same as an Executor — a POA acts while you are alive, an Executor acts after you die
- If you believe someone is abusing a Power of Attorney, you can initiate an investigation with the Office of Public Guardian and Trustee
Watch — Understanding Power of Attorney in Ontario: https://youtu.be/OXgg4iSSHV0
Contact Hummingbird Lawyers for assistance with any Power of Attorney matters.
A Power of Attorney for Personal Care (sometimes referred to as a “Living Will”) establishes what your wishes are regarding health care decisions if you are unable to speak for yourself — and appoints someone to act on your behalf to carry out those wishes.
What It Covers:
- What kind of medical treatment you want or don’t want
- Heroic measures and life support preferences
- Pain medication preferences
- The right for your appointed attorney to consent to treatment on your behalf if required
Key Facts:
- A POA for Personal Care is NOT the same as a Living Will — though the terms are often confused
- If no Power of Attorney is in place and your parent or loved one becomes mentally incapable, the Office of Public Guardian and Trustee automatically becomes the Statutory Power of Attorney under Ontario’s Substitute Decisions Act. Families can work with the OPGT to apply for the authority to be transferred.
Organ Donation: If you wish to be an organ donor, register with Service Ontario — it only takes a few minutes. Let your family and doctors know you are registered as well.
Watch — Understanding Power of Attorney in Ontario: https://youtu.be/OXgg4iSSHV0
Contact Hummingbird Lawyers for assistance with Power of Attorney for Personal Care.
Family Trusts
Simply explained, a family trust is a legal relationship between the grantor, trustee and one or more beneficiaries when it comes to a family’s estate and assets. The purpose of a family trust is to establish a clear way for your family to receive financial benefits in the way in which you have set it out in the trust. For example, a family trust may be beneficial where a family member has poor spending habits, or suffers from an addiction, and the grantor, the person creating the trust, prefers to maintain control over the spending. In a family trust a trustee appointed by the grantor would oversee the family trust.
To ensure that a trust is properly set up, we encourage you to seek the legal advice of a qualified lawyer and an accountant.
Henson trusts are an important part of estate planning when there is a family member with special needs. A Henson Trust is set up through the will. The purpose of a Henson Trust is to provide for that family member with special needs after the will maker dies without compromising their eligibility for government benefits.
Named for an Ontario case whereby the court determined that a trust set up for a disabled beneficiary would not result in a loss of that beneficiary’s government benefits, Henson trusts give the trustees complete discretion when it comes to the distribution of capital and assets to the beneficiary.
The requirements for a Henson Trust to be valid are very specific, so it’s important that you seek legal advice when establishing a Henson trust through your will. Our team at Hummingbird Lawyers LLP has wide experience with various trusts and are pleased to walk you through the process.
From the Latin term meaning “between the living”, Inter Vivos trusts are trusts that you can set up while you are living as opposed to a testamentary trust, which is set up after one’s death pursuant to their will. Inter Vivos trusts can be set up to allow your beneficiaries to receive trust income rather than having that income allocated to the trust and taxed accordingly.
Due to the taxation and legal complexities associated with Inter Vivos trusts, it is always best to consult with a qualified lawyer and accountant when establishing this type of trust.
When a business intersects with family dynamics and owners who are not part of the operation of the business, life can become full of obstacles. A recent survey of family businesses stated that less than 15% of them have anything resembling a succession plan in place — and that is why so few family businesses can survive the second generation, let alone the third or fourth.
We are here to help you preserve your legacy.
Succession planning touches on many areas of law including corporate commercial, employment agreements, corporate re-organizations, and tax and estate planning. But it goes a lot further than the law. Helping your family navigate the legal and interpersonal pitfalls is what sets us apart. With the help of our team of business lawyers, we apply our expertise to help you put the right people in the right places when business, family, and ownership are put into play.
Contact Hummingbird Lawyers to discuss your succession plan.
A Bare Trust is an arrangement between the listed owner of a piece of property (example; land or a bank account) and the real beneficiary of the property. An example of a Bare Trust is a child holding a piece of property for the real benefit of a parent. The parent is the “true owner” of the property even though title may be in the child’s name. Like anything else, there are pros and cons of using a Bare Trust. It is critical to have legal advice in determining whether you need a Bare Trust Agreement.
Looking For A Lawyer To Draft Your Will?
Do not make the mistake of thinking all things are simple and equal. We have skilled and experienced lawyers located in our Vaughan and Toronto offices as well as full video/digital ability to meet our clients virtually. We service clients who live across all of Ontario, and those who live all over the world who have property or an estate in Ontario.
Frequently Asked Questions
In a case of dying without a Will, your money may not automatically go to the people you think. You may not have provided adequately for a dependent. Decisions regarding your minor children and their money may be influenced by someone you do not want to have involved. The funds that your family needs could be tied up in estates court for a length of time, when they need it the most.
Yes. You cannot say “I only need a simple Will” until you have a proper consultation with a Will lawyer who can review many issues that you may not think of. Hummingbird Lawyers facilitates the preparation and execution of critical estate planning legal documents such as Wills, powers of attorney and trusts.
If you need to be officially appointed by a Court to act as an Estate Trustee, payment of an estate administration tax (“EAT”) is required. The rate of tax due is calculated based on the value of the assets of the estate that require probate. Effective January 1, 2020, no EAT will be payable on the first $50,000.00 of an estate value.
Executors beware! The Ontario Government has implemented changes that affect all that go through the probate process. The Estate Trustee or Executor must file a detailed inventory reflecting everything a person owned at death. The deadline is 180 days from the issuance of the Certificate of Appointment.
Canada Revenue Agency created new reporting requirements for anyone with a Bare Trust to file a T3 tax return form. However, the CRA suspended the requirement for the 2023 tax year, saying it had an unintended impact on Canadians.
Hummingbird Lawyers strategically assists businesses and individuals in the areas of business and corporate law, commercial and residential real estate transactions, wills and estates, employment law, family and divorce, litigation, and immigration.
Awards & Recognition
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