FROM THE LAWYERS WEEKLY: Navigating Wills & Estates with common-law partners

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This week, our own Timothy Sullivan’s first piece for The Lawyers Weekly covers how lawyers can more successfully manage the sometimes tense situations that arise when common-law partners approach the Wills & Estates process.

In the past 10 years, the number of common law couples in Canada has grown at something like four times the rate of married couples. And while it’s not surprising to lawyers that common law relationships are not the same as marriage, it can still be surprising to “normal” people.

When it comes to working with a lawyer to draft a will and estate plan, common law couples can bring unique challenges to the table. Anticipating, explaining and addressing these will help both you and your clients through the process with as little misunderstanding between you and as little conflict between the client and family as possible.

Why a will matters so much for common law couples

Common law partners, even those in very long-term relationships, don’t always understand that when one spouse dies intestate, they are not accorded the same rights as a married spouse. In Ontario, for example, a widowed, married spouse receives a $200,000 preferential share and, as closest relative, the likely appointment as an estate trustee — none of which applies to a  common law partner. Ensuring that common law couples understand exactly why it’s so important they make wills is really the first — and possibly most difficult — challenge for lawyers.  

To read the rest of the article, please visit The Lawyers Daily.

FROM ADVOCATE DAILY: Good estate plans involve open communication

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Communication is vital when preparing a will

From AdvocateDaily this week:

Having an open discussion with family members, beneficiaries and intended executors is an important part of preparing an estate plan in order to minimize conflict, reduce expenses and meet the testator’s intentions, Ottawa family law and estate lawyer Timothy N. Sullivan says in a recent Caregiving Matters podcast.

As Sullivan, principal of SullivanLaw, says in the interview, one of the main legal issues that families face when someone dies is trying to respect the deceased’s intentions.

“The family will have to go through a process of grieving, dealing with the funeral and the burial … The issue that they hand to lawyers at some point is ‘what now’. The ‘what now’ when it comes to the lawyer’s point of view is ‘where’s the will?’”

For testators, he recommends taking the time during the estate-planning process to communicate this information to family members, beneficiaries and executors.

To read the rest of the article, visit AdvocateDaily.

INTESTATE: 10 things that happen if you die without a Will in Ontario

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No, wills aren’t fun. But they’re important.

What happens when you die without a will in Ontario

If ‘making a Will’ has been one of those things on your long-term to-do list but doesn’t seem to ever become a top priority, you’re not alone; studies show that as many as 74% of Canadians don’t have an up-to-date Will, and about half of Canadians don’t have a Will at all.

I get it. Wills require you (and your family, in many cases) to think about your death which tends to be a subject most of us avoid. If you don’t think of your assets as being particularly valuable or if you assume that your family members are all reasonable and would distribute your estate equitably, it’s hard to justify the time and expense a Will might require.

However – and you knew this was coming – dying intestate (without a Will) can be more problematic than most people realize.

10 things that happen if you die without a Will in Ontario.

1. The law decides how the estate is distributed among your spouse, your parents, your children and your siblings. Your spouse inherits the entire estate if you have no children; even if you have children, your spouse may inherit everything, or the first $200,000 of your assets and the remainder is split equally among your family. If you don’t have a spouse or children, it is distributed to other relatives.

2. Common-law spouses do not automatically inherit your estate or even a portion of it. There can be some confusion over who controls your estate and how it is to be distributed if it is not made clear in a Will.

3. Your closest relative will likely be appointed as your personal representative. Someone will have to step up to the plate to administer your estate which allows them to manage and distribute it. Is your current closest relative the best judge how to administer your estate?

4. If you have no living next of kin, your entire estate goes to the Ontario government. When you hear of some lucky nephew who inherits an estate out of the blue, that’s the Ontario government after a search for some live relative of the intestate deceased. Your favourite charities have missed a chance to benefit.

5. Personal items may not be distributed as you would have liked. Your niece Jane, who had a special relationship with your mother and who was to receive your mother’s silver teapot when you died, is now dependent on the goodwill of whoever is administering your estate.

6. Possible tax savings may be lost. Smart estate planning can minimize the tax paid by your estate to increase what is available to heirs. Dying intestate means you can’t take advantage of these measures.

7. A dependent child or other relative may not be properly provided for. Unless provision is made in your Will, a dependent child who needs long-term care may not receive the financial support you were hoping to provide.

8. Someone else will decide who will become the guardian(s) of your children. If you are the primary caregiver for your minor children and you die without a Will and without the other parent around, you lose the opportunity to specify who you want to act as their guardians.  The court will make the decision without your input. 

9.  You have no control over your funeral and burial arrangements. If your executor – who, you may remember, the court chose on your behalf – doesn’t know or doesn’t really care about your wishes, your funeral and burial arrangements will be made according to their preferences, not yours.

10.  Your preferred charities may not benefit. Without a Will, the charities you hoped to support with your estate won’t receive anything.

Making a Will doesn’t have to cost a lot of money and it doesn’t even have to take a lot of time. More importantly, the cost of not doing it can be huge. So no matter how you do it – or which lawyer you engage to help you – it’s important that you make it a priority because there is a time when it’s too late to draft a Will.

FROM ADVOCATE DAILY: Life insurance and how it affects spousal support and children

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Life insurance as security for children and spousal support has some flaws

From AdvocateDaily this week:

A recent Ontario Court of Appeal (OCA) ruling that allows a second wife and child to claim support from a deceased common-law husband’s life insurance policy raises some important questions and issues, says Ottawa family and estate lawyer Timothy N. Sullivan.

The ruling overturned a Divisional Court decision that found the second wife was not a “creditor” and therefore had no security interest in the policy.

Now the first wife and children, who were irrevocable beneficiaries, are still entitled to receive support from the $1-million policy, with the second wife receiving the remaining proceeds.

Sullivan, principal of SullivanLaw, says the issue has been in the spotlight because if a payor with a life insurance policy dies intestate, or revokes the beneficiary, the support recipients are out of luck since the insurance company isn’t a party to the separation agreement.

“If there’s no money available, then too bad, so sad,” Sullivan tells AdvocateDaily.com.

“It is a challenge for family lawyers to assure clients in the event somebody dies who is paying support doesn’t name you as an irrevocable beneficiary. So we provide things in the agreements such as requiring the payor to prove the recipient is a designated beneficiary, or if there’s a lapse in premiums, the recipient can pay those premiums and be reimbursed.”

Sullivan says he questions the result of the recent OCA case because it is not clear if they were common-law spouses by Ontario law. According to the decision, they were living in different countries and visited often. The woman became pregnant in the final months of the man’s life.

“Is she a dependent? It was a very short-term relationship,” Sullivan says. “I had a case where a couple had a child together but didn’t live together so there’s no spousal support entitlement. You have to cohabit.”

To read the rest of the article, visit AdvocateDaily.