Archive for Estate planning

Legal and Beneficial Ownership

In an earlier blog we discussed the two types of ownership of property, Joint Tenancy and Tenants in Common.  Joint Tenancy and Tenants in Common are fairly easy to understand, because they are straight forward, but there are a few other types of ownership, which you should know about. These alternate forms of ownership can affect your ability to deal with your land. In this blog, I am going to discuss the concepts of legal and beneficial ownership. Legal ownership and beneficial ownership are two different things. Legal ownership of property is the person on title which has no real value to it. And the beneficial ownership is the actual property owner. The Legal owner is not the true owner of the property; he/she holds the title for the beneficial owner. The person, who owns the property, owns the both, the legal title and the beneficial title, but in some circumstances it is not the same.

Legal owner: The legal owner is the person under whose name the property is registered. Under the Legal ownership the legal owner has no right to sell or rent the property and has no right to make any decision about the property. The Legal owner is not the true owner; but merely holds the title for the true owner.

Beneficial owner: The beneficial owner as the “real owner” of the property is entitled to receive all revenue from the property and is the decision maker with respect to all aspects of the property. The beneficial owner determines the rent charged, the terms of any leases or tenancy agreement, who to hire as a property manager, who to finance the property with and when to sell the property. The beneficial owner has all control over the property. Beneficial ownership can be used when parents want to protect their future and they also want their kids’ names be as owners of the property. For example; grandparents want to give their property to their grandchildren, but they also want to keep some control of the property, in that situation they can transfer the legal title, but they can keep the beneficial title.

To facilitate the division between the legal and the beneficial owner there should be a legal structure called a bare trust. A Bare trust is a type of a company which is used to hold a legal and registered title to the property as nominees, in trust for the beneficial owner of the property. The share of the bare trustee company is owned by the beneficial owner.  It acts on the directions of the beneficial owner. It is a single purpose company, created to hold the specific property, with no other history and assets.  It cannot hold more than one property with another company for different properties. The legal relationship between the bare trustee and a beneficial owner is needed to be set out in the bare trust agreement. There are so many advantages of having a bare trust. The transfer of the beneficial ownership is not registered in the land title office, so as the transfer is not filed, it is not subjected to pay the Property Transfer Tax, but if the transfer is for some reason, registered with the land title then the beneficial owner is subjected to pay the Property Transfer Tax.

When the purchaser buys the property, the purchaser will buy the beneficial interest in the property at the decided value and will also buy a share in the bare trust for $1.00.

The other advantage of the bare trust is that it allows multiple co-owners to hold the beneficial interest in the property, with only a bare trustee on the title. It also allows changes in co-owner without paying the Property Transfer Tax.

While there are many advantages of having a bare trust, there is also a disadvantage of it. It is very costly to establish and maintain the trustee company. It costs approximately $1,200 to incorporate a trustee company and prepare the bare trust agreement. And the annual cost of maintaining the bare trustee company is approximately $300 per year.

To get more information feel free to give us a call @ 604-503-3853, I am always happy to serve you.

 

 

Tenants in Common and Joint Tenants

 

When clients come into my office to get their work done for a purchase or for Estate planning, we ask a lot of important questions to make sure we prepare all of the documents correctly. This is so we can stay prepared and avoid mistakes when the title changes hands in the real estate transaction. I always want my clients to be safe in the future, their fore I want my clients to be honest and to provide me with all the information that they think is important for me to know before we start our work.

The most important question that I always ask my clients is how they want to hold title, meaning how they want their property to be owned by them as “Joint Tenants” or as “Tenants in Common”. When I ask this question, most of the time they ask me in return, “does it make any difference?” In land transactions “Joint Tenant” and “Tenants in Common” is the most important fact, which shows your share in the ownership of the property. Most clients think, it is the same thing, and they often think these words mean the same, but in reality they are not. Property owned by more than one person must be owned in one of two ways: joint tenancy or tenancy in common. In practical terms, the chief distinction between joint tenancy and tenancy in common is the right of survivorship. Only joint tenants enjoy right of survivorship.

The term “Joint Tenancy” is used to describe any situation where property, real or personal, is held in a manner which, at law, the death of one joint owner results in the property passing to the surviving joint owner(s) as opposed to passing to the estate of the deceased owner. All the owners have equal rights and they are held liable equally for anything. In easy words if the property is held under joint tenancy by two people, if one of the owners died, the share of the deceased owner passes to the surviving owner.

Let’s study this with an example: Dave, John and Smith bought a property together under Joint Tenancy. If Dave is unable to pay the property tax on time, then John and Smith are also liable equally, if Dave is unable to pay it, John and Smith have to pay Dave’s share. As the term “Joint Tenancy” also means the “right of survivorship”, according to this, after a few years, Dave dies, now the property is owned by both John and Smith equally. Because the property was held under joint tenancy, Dave’s spouse or children have no legal right on that property. A few years later, John dies, and now Smith is the only owner left of the property. With the joint tenancy, all the shares of the deceased owner will automatically go to the surviving owner. It can often be utilized for estate planning objectives. For instance, one spouse might use joint tenancy to make certain that the entire property held jointly by the spouses goes to the other, upon one’s death. Joint tenancy is frequently used between spouses for assets such as real property, investments, bank accounts and vehicles. Because joint tenancy creates the right of survivorship, when the spouse dies the property will transfer to the other spouse with minimal administrative issues. Because it does not form part of the estate, probate fees will not apply. Under Joint Tenancy no one can sell the property without written consent of each other.

Tenants in Common

Tenant in Common works differently than Joint Tenancy. A tenant in common is a form of ownership whereby each tenant holds a percentage of interest in the property. If one of the owners dies, that owner’s interest in the property passes to their estate, to be passed on, according to their Will. Tenants in Common can hold equal or unequal shares in the property.  Every party owns an undivided share in the property and as a result is free to possession of the whole property.  For example, there could be five persons who are tenants in common, but four of them could own 1/10 of the property each, and the fifth person might own 6/ 10 of the property. If the holder of a tenancy in common desires, either to sell or mortgage their interest in the property, that can be done by them, without the consent of the other tenants.  It is also possible for a tenant in common to apply the courts to “partition” the property or to sell the entire property and distribute the net proceeds of sale proportionately. Tenancy in common does not carry a right of survivorship as in joint tenancy.  In other words, if one of the tenants in common dies, the interest does not go to the other tenants, but goes to the estate of the deceased.

To understand this better let’s take one example: Let’s say Dave, John, and Smith bought property under Tenants in Common, Dave has 1/3 share in the property, John also has 1/3 share, and same with Smith. A few years later Dave dies, and his share becomes part of his estate. That means his share will be given to the person whoever is named under his Will, it could be his Wife or it could be his children. So “Tenants in Common” is the best option if you have been formerly married, have children from an earlier relationship, and have since remarried, you may perhaps desire to state in your Will that a clear piece of the worth of the estate goes to those children independently or jointly.  The only way this can be dealt with is in tenancy-in-common circumstances, because the interest would be deemed to be an asset of one’s estate.

If you are going to buy a house or need help with estate planning, feel free to give us a call for any type of information at 604-503-3853. I always try to provide the best service to make my client feel satisfied and I always make sure that my client understand all the pros and cons of work they are getting done.

A power of attorney

 

If you want to appoint someone to take care of your financial and/or legal matters, whether you are capable or incapable of doing it by yourself, you should have a legal document called a “Power of Attorney”. This will allow, the person appointed by you, to act on your behalf legally. The person you appoint to act on your behalf is called the “attorney”. As an adult, after your parents’ rights have ended, no one has authority towards your legal and financial assets; therefore you need to have a written Power of Attorney to appoint someone on your behalf.

Requirements (Donor):

• Person should be 19 year of age or over.

• Person signing the document must be mentally competent. A person should be able to fully understand what he or she is signing.

• Power of Attorney must be signed and dated in front of two witnesses, both present at the same time. Witnesses must be adults. If you have a notary or lawyer preparing the Power of Attorney then only one witness is needed. Witnesses should not be named as attorney(s) in the Power of Attorney. A Parent, a Child or a Spouse cannot act as a witness.

Types of Power of Attorney: There are three different types of power of attorneys: General Power of Attorney, Specific Power of Attorney and Enduring Power of Attorney.

General Power of Attorney: It does not specify limits and/or the powers of the attorney appointed by you. With a General Power of Attorney, the attorney can make all the decisions that the Donor can make. Also the Attorney is permitted to handle financial and legal affairs, but cannot make any decisions related to health care. For example with a general power of attorney, the attorney is allowed to handle all the matters up until the time provided in the power of attorney.

Specific Power of Attorney: It is the document which gives limited or specific powers to the person you appoint as an “attorney”. For example, the Attorney could be authorized to sign a cheque for a specific bank account to pay household bills. Or with the use of a Specific Power of Attorney, you can appoint someone to sign the documents related to the sale of a house and deposit the proceeds in a specific bank account.

An Enduring Power of attorney: A legal document that enables an adult to appoint another person to manage the adult’s financial affairs and property while capable and continues if the adult becomes mentally incapable. It is effective when you are not capable of making your own decisions. An Enduring Power of Attorney does not stop you from managing your own affairs, as long as you are capable. You may make an Enduring Power of Attorney if you are 19 years of age or older, and you are capable of making decisions. The law presumes you are capable unless it is shown that you are not.

Who Should I Appoint? People usually appoint their spouse, siblings, and children or most trusted family members. You cannot appoint a care giver who is paid to provide you with personal or health care services or an employee at the facility where you live if the place provides health or personal care services. If the person providing the care is your spouse, parent, or a child, then this rule does not apply.

What does a power of attorney cover? A Power of attorney covers only your legal and financial decisions. It does not cover any health care decisions. A power of attorney usually takes effect as soon as you and your attorney(s) sign the documents. You can continue to manage your financial and legal affairs for as long as you are capable. But your attorney can help you with any complicated matters. An enduring power of attorney can also take effect at a specified time that you name in the document.

How can you end a power of attorney? You can end the Power of Attorney any time. General Power of Attorney automatically ends when you become incapable unless you included the enduring clause or you are certified as “incapable” by the Director of a Mental Health Facility. Specific Power of Attorney ends when the purpose of the Power of Attorney has ended. You can end your Enduring Power of Attorney as long as you are capable. You must put your decision in writing. The written decision is called a “Notice of Revocation”. You must give a signed and dated copy of the written Notice of Revocation to your attorney(s).

An Enduring power of attorney ends as soon as you are dead. Your power of attorney is only valid while you are alive. The only valid document after your death is the Will.

What kind of Power of Attorney is right for you? Depends on your situation. Your notary will help you decide, which power of attorney is best for you in which situation. If you have any questions or want more information please give us a call @ 604-503-3853.

Codicil

A codicil is a legal document that is used to amend a Will rather than replacing a previously executed Will. A codicil can add to, subtract from, or modify the terms of the original Will. It must be dated, signed and witnessed just as a Will would be and it should also make some reference to the part of the Will being amended.

Adding a Codicil to a Will is an easy way to make minor updates to your Will without starting over. The Codicil is a separate legal document from your Will, although it is best stored along with it. Adding a child as beneficiary, changing an executor or including a new asset can all be accomplished through a Codicil

Use the Codicil to Will document if:
• You want to change one or more provisions of your existing Will due to events such as a marriage or divorce, the birth of a child, a move to another province, a significant change in financial status, a change in tax laws, or the death of a beneficiary;
• You want to add or change beneficiaries;
• You want to add or change the nomination of any executor, trustee or guardian.
• You did not include Digital Assets in your existing Will but would like to address them now. Digital Assets can include any online accounts or files stored on a computer or server, such as email accounts, blogs, social-networking websites, and photo and document sharing websites. You can use the Codicil to Will to appoint a Digital Executor to handle your Digital Assets;
• You want to modify conditions or restrictions on the receipt of a bequest, such as the age at which a child can receive a bequest.
Requirements for the Codicil are:
1. it must have your name, the date and the location of the signing;
2. it should identify the Will which is going to be changed by this codicil;
3. It must be signed by two witnesses who are not beneficiaries;
4. An attestation stating that you affirm the codicil, must be signed by you;
5. It must state that you affirm everything else in the will;
6. It should also include a version number of the codicil, if it is the first one or the second one.

It’s a good idea to use codicils only for very small changes, because they can make sorting out your Will more complicated when you die. It is a useful tool, but you have to use it properly for it to be effective.
The risk in using a Codicil improperly is that you’ll end up creating confusion either by contradicting a detail in the Will or by revoking a sentence you didn’t mean to revoke.

The other danger in using a Codicil is that it can become separated from the Will that it’s supposed to amend. If the Codicil becomes separated, the executor might not know about the changes that were supposed to be made.

There are three reasons why executing a new Will may be a preferable course of action:
1. A new Will avoid any danger of a codicil not adequately referring to the correct Will;
2. When only one document exists (i.e. the new Will) there is less likelihood of misinterpretation; and
3. If a codicil is used to revoke a gift made in the Will, the party who would have received the gift will be informed of the change made by the Will-maker, which could cause personal discord in the Will-maker’s relationship with that person.

An unattested alteration made after the Will is executed is invalid, and may also invalidate any existing part of the Will the alteration obliterated or made impossible to decipher.
Both the Will and the codicil require the signature of witnesses. Both are valid only if they are signed in front of two adult witnesses. A Codicil is cheaper than a Will but in some cases, it is easier and safer to redo the Will.

For more information please call us a call @ 604-503-3853

Advance Care Directive

An advance care directive is a written statement in which you can make your healthcare wishes known. It is used in the event of an illness or any injury which leaves you incapable of communicating your wishes to others. Your directive cannot be used anytime you are able to communicate or you can make your own decisions.

Who can make an Advance Care Directive?
Anyone who is over the age of 16 can make an Advance Care Directive. If someone under the age of 16 wants to have one, they can make it with a special rule. Anyone who can provide clear instructions about their healthcare treatment options should make an Advance Care Directive.

Why should you have an advance care directive?
• It provides instructions to your healthcare professionals, such as a doctor or a nurse, and to your family members, that you want to be followed, when you are in position where you are unable to make decisions.
• With the Advance Care Directive you can also appoint someone to make decisions for you if you are unable to make them on your own.
• It also provides clarity about your healthcare wishes to prevent any kind of conflict about the treatment you will receive.

You can make it any time you feel comfortable discussing your healthcare wishes.
To make an advance care directive you should sign in front of two witnesses and ensure that they also sign the document. Please call Harinder Dail Notary Public @ 604-503-3853 to assist you in drafting this document.

Representation Agreement

The Representation Agreement Act allows you to appoint someone as your legal representative to handle your financial, legal, personal care and health care decisions, if you’re unable to make them on your own. You cannot appoint any person who is paid to provide you with personal or health care or who is an employee of a facility through which you receive personal or health care, unless that person is your child, parent or spouse. The document is called a representation agreement and it creates a contract between you and your representative

Usually, a representation agreement provides that it only takes effect when a person is incapable of making decisions for themselves.

There are two types of representation agreements:

1. Standard Representation Agreements
2. Enhanced Representation Agreements

Standard (Section 7) :
It can be made by an adult, who has less than full legal capacity, but the representative’s authority must be limited to the “routine management” of the adult’s financial affairs and the agreement can only give limited decision-making authority in respect of health care matters.

Areas covered by Standard Section7 are:

• Minor and major health care, which includes medications, tests, surgery, any treatment requiring ageneral anaesthetic, dental care, end-of-life comfort care.
• Personal care, such as, living arrangements, diet, exercise, taking part in activities, personal safety issues.
• Legal affairs, which include obtaining legal services and instructing a lawyer, settling an insurance claim, going to small claims court.
• Routine management of financial affairs, such as banking, government benefits, Revenue Canada, managing investments.

An Enhanced Section 9:

A Representation Agreement with Section 9 broader powers is a legal document available to adults who want to plan for their future in case they need assistance making health care and/or personal care decisions. A section 9 agreement can only be made by an adult who understands “the nature of the authority” given to the representative and “the effect of giving it to the representative”. This agreement allows you to appoint someone to make decisions for you if you are unable to communicate your wishes.

These decisions include:

1.The ability to decide where the adult is to live and with whom, including whether the adult should live in a care facility.
2.The ability to give or refuse consent to health care for the adult, including giving or refusing consent, in the circumstances specified in the agreement, to specified kinds of health care, even though the adult refuses to give consent at the time the health care is provided.
3. The ability to make life support or end of life decisions.
4. The ability to, despite any objection of the adult, physically restrain, move and manage the adult and authorize another person to do these things, if necessary to provide personal care or health care to the adult.

Rules for signing a representation agreement:

Two witnesses are needed when you sign a representation agreement (unless one of the witnesses is a lawyer or notary, in which case you only need the signature of that lawyer or notary as a witness). There are also certain restrictions on who can be a witness.

For more information please contact HARINDER DAIL NOTARY PUBLIC @ 604-503-3853.

Estate Planning

What is estate planning?
Estate planning is making a plan in advance to distribute your assets to your loved ones and naming whom you want to receive the things you own after you die. However, good estate planning is much more than that. Many people think that estate planning is only for those who have lots of money and assets.

What is an Estate?
Your estate is comprised of everything you own— your car, home, other real estate, chequing and savings accounts, investments, life insurance, furniture and personal possessions.

What is the right time for estate planning?
Individuals put off estate planning because they think they don’t own enough, they’re not old enough, they’re busy, think they have plenty of time, they’re confused and don’t know who can help them, or they just don’t want to think about it. Then, when something happens to them, their families have to pick up the pieces.

What happens if you don’t have an estate plan?
If your name is on the title of your assets and you can’t conduct business due to mental or physical incapacity, only a court appointee can sign for you. The court, not your family, will control how your assets are used to care for you through a guardianship. It can become expensive and time consuming, it is open to the public, and it can be difficult to end even if you recover.

If you die without a proper estate plan, your assets will be distributed according to the laws of the province. If you are married and have children, your spouse and children will each receive a share. This mean your spouse could receive only a fraction of your estate, which may not be enough to live on. If you have minor children, the court will control their inheritance. If both parents die (i.e., in a car accident), the court will appoint a guardian without knowing whom you would have chosen.

Steps to plan your estate:
Many people think making a will is the only part of estate planning, but there are also some other steps that you need to take. To plan your estate you need to organize everything step by step so that it will be easier for your dependents to know what is going to happen after you pass away. You should appoint someone to act for you if are going to a nursing home and if you are disabled. All estate plans should include three important instruments: a power of attorney, a representation agreement, and a will.

Representation agreement:
The Representation Agreement Act allows you to appoint someone as your legal representative to handle your financial, legal, personal care and health care decisions, if you’re unable to make them on your own. You cannot appoint any person who is paid to provide you with personal or health care or who is an employee of a facility through which you receive personal or health care, unless that person is your child, parent or spouse. The document is called a representation agreement and it creates a contract between you and your representative.

Power of attorney:
A Power of attorney is a way to appoint an “attorney” to take care of your financial estate in your absence. With the power of attorney if something happened to you, the person you appointed as attorney will step and take over the situation. Without a durable power of attorney, no one can represent you unless a court appoints a guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer.

Will:
A will is a document which comes into effect after a person’s death. It is revocable and subjected to amendment any time during your lifetime. It gives all the information about a person’s wishes, how the person wants his/her estate to be managed and distributed after his/her death. Sometimes it also called a “last will” or “testament”.

Valid Will:
A valid will cannot exist unless three essential elements are present. First, there must be a competent will maker. Second, the document purporting to be a will must meet the execution requirements of statutes, designed to ensure that the document is not a fraud but is the honest expression of the will maker’s intention. Third, it must be clear that the testator intended the document to have the legal effect of a will. In BC the will must also be witnessed by 2 individuals.

For more information and advice on estate planning and to get everything organized for will preparation please contact Harinder Dail Notary public.

Updating Wills

It is important that you roll into the New Year prepared. With updating your will, you can save your family and loved ones from distress. Some of the most common events and circumstances that may require changes in your will are:
*Death or serious illness
*Marriage
*Divorce
*Birth or adoption of a child
*Purchase or sale of major assets
Take a look at your will and see if any of these situations apply, if they do give us a call to book an appointment to review and update your will!
If you have any questions please leave us a comment or give us a call at 604-503-3853

Representation Agreement

Along with a power of attorney, it’s a good idea to have a representation agreement. A representation agreement allows you to appoint someone to legally represent you in handling all your financial, health, legal and personal decisions if you are unable to make them yourself. You can appoint anyone that you feel is suitable and trustworthy keeping in mind that, you may not appoint any person who is paid to provide you with personal or health care. Since this is a very important legal document it is recommended you consult with a notary public and have a notary witness when you sign the agreement.
For more information please call us at 604 503 3853.

New year….New Resolutions

Sticking to all your new year’s resolutions can be tough and hard to manage. With the help of a notary you can ensure that all your essential legal documents for the New Year are created, updated and properly registered. With our help we will make sure that you receive fair, honest service and value for your dollar. For more information please give us a call or feel free to leave us a comment!