Frequently Asked Questions

The Certificate of Estate Trustee with a Will, formerly known as “Probate” is the process of applying to the Ontario Superior Court of Justice to certify that the Will attached to the Application for Probate is in fact, the Last Will and Testament of the Deceased. Once certified by the Court, the person named in the Will as the Executor/Estate Trustee has legal authority to manage or distribute the Estate.

“Probate Fees”, properly known in Ontario as “Estate Administration Tax” is calculated using a specific formula. On average, this works out to be approximately 1.5% of the value of the Estate.

If someone dies without a Will, provisions of the Estates Administration Act combined with the Succession Law Reform Act and the Rules of Civil Procedure create a scheme by which the property of a person who died wholly or partially intestate is to be distributed.

Generally, we do advise to specifically name your young children in your Will. In saying this, a couple things to consider are whether you are planning to have more children and if you wish to disinherit a child.

When naming beneficiaries in your Will, make sure to be as clear and precise as possible. This will help the people who are carrying out your final wishes better understand who you want to receive your property and help avoid potential mistakes.

When naming people as beneficiaries, make sure to use their full legal names. It can also be beneficial to add the person’s relation to you (e.g., spouse, father, sister). If two beneficiaries have similar names, be sure to distinguish between them in some way (“my father, John Smith and my brother, John Smith Jr.”).

You should be aware that until those children become 18 years old, they will not directly receive any assets you designate for them. The assets you leave to minor children will need to be put into a Trust (which you can establish in your Will) and will be managed by the Trustee of that Trust, who may be your already designated Trustee, the child’s Power of Attorney for Property or the Public Guardian and Trustee. In this way, minor children can receive the benefits of distributions from the Trust but will not themselves control those distributions. Many people choose to set an age over 18 years (such as 21 or 25) as the age when a child will have full control over their inheritance. This can be done in a Will.

There are generally two things that will drive a decision to incorporate; tax planning and liability. From a tax perspective, the benefit of incorporating will be best determined by an accountant who can review your personal circumstances.  Small business corporations in Canada can receive significant tax advantages so it is worth looking into, especially if you are not spending everything that you earn in your business and you can afford to retain some money in the corporation for expansion or other investment.

From a liability perspective, incorporating your business is one of the best ways you can protect your personal assets. A corporation can own property, carry on business, incur liabilities, and sue or be sued. As a separate legal entity, a corporation is responsible for its own debts. That means creditors of a corporation generally can seek payment only from the assets of the corporation and not from the personal assets of shareholders, directors and officers. In effect, that means business owners can conduct business without risking their homes, cars, savings, or other personal property. Owners of a sole proprietorship or partnership, on the other hand, face unlimited liability for both business and personal assets. There are exceptions to this asset protection strategy, particularly when it comes to government remittances like income tax, HST and payroll remittances, which should be discussed with legal counsel.

A commercial lease is a complex legal document and is often one of the largest and longest financial commitments an individual or corporation will make. Further, most commercial leases are not in a standard form and can vary substantially based upon the landlord and the situation.

In addition to the usual but important commercial provisions such as the term of the lease and monthly rentals, there are numerous other commercial and legal provisions and terms that may significantly increase costs or may otherwise adversely affect your business. It is necessary to ensure that important provisions that will allow a tenant to protect the way they do business should be included, and that the rights and obligations of both landlord and tenant should be set out as specifically as possible to ensure all parties understand their commitments.

Additional provisions to be mindful of: personal guarantees, excessive common area maintenance fees, ability to sublease and assign, whether or not a competing business can move in next door, options to renew and dispute resolution options (this is not an exhaustive list).

A “Prenup” or Prenuptial Agreement in Canada is a legally binding contract entered into before marriage. In some provinces and territories, the term Prenuptial Agreement is commonly referred to as a Domestic Contract or a Marriage Contract.

Two persons who intend to marry may enter into an Agreement which sets out their respective rights and obligations under the marriage or upon separation or termination of the marriage. The Agreement must be in writing, signed by the parties and witnessed. When drafting a Prenuptial Agreement or Marriage Contract, full and frank financial disclosure is imperative. These Agreements may deal with a broad range of matters, including the ownership or division of property, support obligations and “any other matter”. However, issues concerning custody of or access to children are not included in the Prenuptial Agreement or Marriage Contract.

It is strongly advised that you have your lawyer review these types of Agreements before you sign them.

It is strongly advised that if your children are minors, you have a Consent Letter drafted, executed and witnessed (by a Commissioner or Notary Public). We recommend that the letter be signed by every non-accompanying person or organization with the legal right to make major decisions for the child. Further, it is recommended that the letter be signed by any non-accompanying parent who has access to the child. The travel itinerary of the child should be included in the letter.

If you have a custody order or agreement, make sure that it permits the child to travel outside Canada. Travelling abroad with the child without the legal right to do so may result in legal or criminal consequences. Canadian custody orders are not automatically recognized or enforceable in other countries without going to court.

You should also contact the embassy or consulate of each country you plan to visit to check their entry requirements.