It was an absolute pleasure meeting with Steven Bailey, licensed paralegal with Binsky and Whittle and member of the Law Society of Upper Canada. He educated us on some of the issues that can arise if your estate and affairs are not properly looked after before you pass away. I’ve been in the funeral industry a long time and my eyes were opened to many things that I was not at all aware of. Enjoy the podcast and don’t hesitate to contact us if you have any further question.

[powerpress]

ERIC: OK! I’m here at Binsky Whittle on Stanfield Road in the same building of the head office of Basic Funerals and I’m with Steven Bailey.

STEVEN: Hello.

ERIC:  So, Steven, why don’t you tell me a little bit about what you do here?

STEVEN:  So, basically- I’m a paralegal. I work under the supervision of lawyers. I do wills and estates. So, basically, anything to do with wills, power of attorney, or probates, they come to me. The best way to explain it to people, ‘What is a paralegal? Is that a lawyer or is that a whatever?’ Basically, if you look at it in the medical field, you have a doctor and you have a nurse. I’m kind of like the nurse of the legal field in a way.

ERIC:  OK

STEVEN:  So, I do all of the actual work. [laughs]

ERIC:  [laughs]

STEVEN:  The paperwork, all the not fun stuff… and then everything gets looked over by a lawyer to make sure everything’s done properly, and done legally, and then I deal with all of the clients. They call and they talk to me. It’s better to talk to me because I have more time. I can actually be more hands on, more than a lawyer where you hear from them once and you get a $500.00 bill. You know what I mean?

ERIC:  Right.

STEVEN:  So, it’s cost effective for the client as well. So that’s basically what I do here at Binsky Whittle.

ERIC:  So wills, estates, probates, I mean, that goes along so closely with what we do when we serve people who are either prearranging a funeral, or actually arranging a funeral, which we would call at-need, where there has been a death. Because, people very often they don’t have their wills in order, their end of life affairs in order… and they don’t find out about find out about that until someone passes away. They are completely unorganized and then, you know, for the next time… they get organized. We run into that all the time and we’re trying to educate people on how they can best plan for their end of life. So, you know, we like people to prearrange their funeral to remove stress and financial burden. What would you suggest to people on your side of things to best plan for end of life?

STEVEN:  And you’re absolutely right. When I get somebody in here it’s usually someone has died. You know and all of a sudden it’s like ‘oh, I’ve never even thought of doing a will.’ The issue is, sometimes, you know what? It’s funny. I find it’s usually men who are very stubborn about this situation.

ERIC:  About actually doing a will.

STEVEN:  About actually doing a will. So, they’ll come to me and say “I don’t need a will because of this, this, and this.” And they’re absolutely wrong.

ERIC:  Because men are ten feet tall and bullet proof… I know I am. [laughs]

STEVEN:   And that’s the thing. They’re like “I’ll never die.” I’m pretty sure if you get hit by a car, it doesn’t matter what age you’re at. You’re not going to most likely survive that. So, when I talk about a will, especially if you own a house, and a lot of people here, especially with the GTA market, houses are expensive— extremely expensive.

Eric: Yeah.

What a lot of people don’t understand is: If you don’t have a will, your estate is still going to be distributed. It’s not going to go to the government. A lot of people think ‘the government is going to take all of my money… that’s why I want a will’ that’s not the reason why you want a will. You want a will because if you don’t have a will, it could go to people you don’t want it to go to. That’s the issue.

ERIC:  So, your estate could be divided up and given in a way that you don’t want it to be.

STEVEN:  Exactly, and it’s easier for people to contest it as well. A friend, Bob, could come up and say “He promised me ten thousand dollars before he died.” And technically, he can go to court with that. With a will, it’s almost impossible to contest that.

ERIC:  Because the will has everything laid out exactly the way you want.

STEVEN:  Exactly the way you want, and who you want your money to go to and all of that. Another issue you come into is you have spouses as well… where you might not want to give everything to your spouse. Just because you’re married doesn’t automatically mean everything is going to her… or him.

ERIC:  Right. We’re seeing a lot of families where there is a second marriage. A person passes away and they’re married to their second spouse… and so there’s children and grandchildren and things like that. It’s probably more complicated now than it was years ago.

STEVEN:  It’s more complicated and if you have a will and you state that you want nothing to go to your ex-spouse, whether you’re divorced or not, she can still come in and try to claim something. It doesn’t mean she can’t. In law, you can claim anybody; you can sue anybody for any reason, really. It doesn’t mean you’re going to win, but you can sue anybody for any reason. When you have a will, it’s more concrete… Saying: ‘No, this is where I want my money to go to; this is who I want it to go to.’ And that’s basically the end of the story. It doesn’t mean people can’t still try to claim something. Because, like I said before, they can do anything they want. I can sue my next door neighbor because he looked at me funny. It doesn’t mean I can’t do that, but it doesn’t mean they’re going to win. When it comes to a will, you’re just saying, no ‘this is my wishes when I die. I want all of my money to go to my kids’, for instance, and that’s exactly what’s going to happen… and that’s the point of a will.

ERIC:  So that’s it. That’s the main point of the will, to direct and divide up assets and things like that.

STEVEN:  Now another thing I wanted to add as well, sorry, things like life insurance, GIC’s, you can name beneficiaries on, which is a good thing. You actually want to name beneficiaries on these different establishments because if you don’t, it goes to the will. The more in the will, the more you have to… what’s called probate. That’s where probate comes in.

ERIC:  We’ll get to probate in a minute. I have a couple of other questions; because, I find this fascinating. Within the will, how do you suggest to your clients to choose an executor, or an executrix, or whatever— and please give me the right name. Because we see it all the time where the executor of the estate also makes the decisions on the funeral and sometimes the executor is not the next of kin and so we sometimes see some disagreements. How do you suggest people choose an executor?

STEVEN:  It’s best to have somebody you trust. And also it’s good to have two. You can have as many as you like. An executor is also known as an estate trustee. It’s the same thing.

ERIC:  OK. Is that a more correct term?

STEVEN:  Estate Trustee is what they like to call it now, but it used to be called executor.  The courts are trying to change it to estate trustee. It’s just complicating things more than anything, but they like to use Estate Trustee more than executor. It’s kind of like an older term—executor.

ERIC:  Yeah

STEVEN:  So, I always recommend to have at least two and to have an alternate as well, because if something happens to the executor and something happens to you soon after, then all of a sudden you’ve got nobody. It’s good to have two at the same time because then they both have to make decisions on stuff… as long as they don’t argue.

ERIC:  Right.

STEVEN:  Right. That can cause a whole other problem. If you have one brother… let’s say that there’s two of you. It’s good to have that one because he’s your brother and he’s going to most likely do what you want. But, I usually recommend either two together or one and then an alternate. Just in case something happens to that first one. Now, as the executor, you’re right, and it’s not always somebody that’s close like a family member. Sometimes, they’ll say “I don’t want my family members as the executor because they’re going to fight. They’re going to argue… I’d rather it be my friend, whoever…”

ERIC:  Unbiased.

STEVEN:  Unbiased. He’s just going to do what the will says. He’s not going to listen to anybody else. He or she is going to do what the will says.

ERIC:  Yeah, that makes a lot of sense.

STEVEN:  And that’s what a lot of people do… and that’s actually not a terrible idea—to have somebody outside of the family that you choose. And again, you have to trust that person.

ERIC:  And I guess too, if you name an executor, or I guess, an estate trustee?

STEVEN:  Yeah.

ERIC:  —of your will, but you are going to be grief stricken when the person dies. You may not be in any state to actually do what you need to do.

STEVEN:  That’s actually absolutely right.

ERIC:  So that makes a lot of sense that you would choose someone like that…

STEVEN:  And I’ve had times with clients and I’m with them and they’re the estate trustee, like a spouse, and it’s hard to talk to them because they’re crying and then they’re… Obviously, I try to be as easy as possible and make the process easy so that they don’t have to do too much work. That’s the whole point of what I do.

ERIC:  Yeah.

STEVEN:  But, when it happens and you’re right, they’re crying and it’s hard for them to bring this kind of stuff up, because they know they’re never going to see them again.  So, it’s one of those things where it is tough and it’s better to have somebody who comes from the outside. Obviously, they’re still going to be sensitive; it’s a friend of theirs, but their hopefully not going to be as grief stricken. Let your family members grieve. That’s what they need to do right now, is grieve… and that’s it.

ERIC:  You mentioned sometimes that if there’s two estate trustees they have equal power, if they don’t agree on something, what happens?

STEVEN:   That’s the one issue when you have two. Eventually it will get to court and the court will decide what to do. It might not be what’s best for the estate. That’s why I say when you do it, you have to be careful if you have two joint [executors]… to make sure that you think that they’re not going to argue on anything. So that’s why it’s almost better to have the one and the alternate. When you do the one you make sure it’s somebody you really trust.

ERIC:  Right

STEVEN:   But, like you said, eventually it would head to court and court will have to decide for them. And sometimes what they’ll do is they’ll just say “you know what, guys? Too much arguing is going on here. We’re just going to liquidate everything and everybody’s going to get this percentage. Done.”

ERIC:  So, what would you say to a person who doesn’t think they should have a will? They don’t see the value in doing it; they are probably obviously not educated on the subject. What are the three key points that you would say: here’s the three main reasons why you need to do this and why it’s so important?

STEVEN:   One of the biggest ones, I actually have a personal experience that I explain to people that I like to tell people that really, to be honest, scares people. I don’t mean to scare them as in, “oh, you better get a will—”

ERIC:  But, they should know.

STEVEN:  They should know. My father passed away without a will and he didn’t have a lot of money but had a really, really big pension. The pension didn’t have a named beneficiary on it either so it went to the estate, but because there was no named beneficiary on it and it went to the estate, the pension company actually kept almost the whole thing. He had about almost $300,000.

ERIC:  And you guys didn’t get anything?

STEVEN:  We got $11,000 each and there’s three of us. Three brothers.

ERIC:  Because there was no will?

STEVEN:  Because there was no will.

ERIC:  And if there had been a will?

STEVEN:  If there had been a will, it would have went to the estate and it would have went to us. Now it’s not the government that took it.  The government has nothing to do with it. The government, all they really want is the taxes. That’s all they care about, obviously. But, the pension company, they said “oh, there’s no will.” And there’s some clause in one of their forms that says if there’s no will, we keep the money. You get a small percentage… and that was it. That’s one of the biggest reasons why you need a will is because anything can happen and your money could actually not be distributed to your family members or your loved ones.

ERIC:  Especially in that third party situation, I guess.

STEVEN:  Yeah.

ERIC:  If there’s no one named on the pension, there’s no will, there’s nothing to do then they just keep it.

STEVEN:  They can say, “Sorry, guys. We’re going to keep this money.” There was a clause and we went to court and everything for this. There was a clause in there that they had stated in one of their contracts. Basically, we were out of luck. That’s, funnily enough, what started me on this path… to become a paralegal.

ERIC:  You weren’t a paralegal at the time?

STEVEN:  I knew nothing about any of this. This was over ten years ago. I knew nothing about this, but it kind of started my mind going and that’s when I started to get into this position. So, that helped me in that way…

ERIC:  Yeah.

STEVEN:  Another reason is—especially when, as you were saying before, the two marriages, people get married again and they get divorced, if you don’t change your will or make a new will and it’s before the date of the marriage it’s deemed void. Which means it’s no good anymore. So let’s say you have a will, you get married… let’s say I make you a will today and two years from now you find a new girl and you get married and you don’t think about it. That will that you made, you think “Oh, I’ve got a will. Don’t worry about it.”

ERIC:  Before I got married?

STEVEN:  Before you got married, it’s void. A court will not take it.

ERIC:  So if you get married after you made a will and you don’t at least update it—

STEVEN:  The date of the will has to be after the date of the marriage.

ERIC:  OK. Got it.

STEVEN:  That’s fine, you can keep the will the same, that’s fine, but you have to date the will after the marriage; which means, you could even just reprint it and resign it if you really want. If you’re thinking ‘that’s fine, I still want to give my money to Whoever Whoever…’ but, if it’s before the marriage the court will not accept it.

ERIC:  Wow… OK. Very good point, I’m sure many people don’t know that.

STEVEN:  A lot of people don’t.  Yeah.

ERIC:  I’m getting married next week, so I had no idea. So, we’re going to have to change some wills when we’re all done!

STEVEN:  Well there you go! [laughs]

ERIC:  Ok, great, anything else on the wills before we move on?

STEVEN:  Last thing is… I guess… you asked for maybe three points? I said two… Now, this one doesn’t really pertain to the will exactly, but also Power of Attorney’s are very important.

ERIC:  Power of Attorney, and that’s pre-death?

STEVEN:  That’s pre-death. So, you’re still alive, but you’re incapacitated.

ERIC:  OK.

STEVEN:  Power of Attorney’s, there’s two different kinds: One is property, one is health. The health one is called Personal Care, but it’s also known as a Living Will. So, the Living Will part, basically all it is the main clause is what’s called a Do Not Resuscitate Clause, which is what your wishes are if you’re at a point where machines are keeping you alive and basically… do you want to pull the plug? That’s basically, in a nutshell, what it means… And the property is just dealing with money. So let’s say you’re in a coma. Something needs to be done. You need to mortgage your house. You need to buy a house… whatever it is. You’re giving the power to whoever you want to do that for you as long as you’re incapacitated. As long as you’re in a coma, you have Alzheimer’s disease; I mean there’s a whole list of medical reasons.

ERIC:  OK, so, the two different types of Power of Attorney: your property and your health, how is that authority granted? Is it in a will, or…?

STEVEN:  No. No. It’s separate forms. The will is only once you pass on. The Power of Attorneys you would give to whoever you want… brother or sister or a wife or whoever, but they’re two separate forms. One is Property, one is Personal Care. So, basically, if that happens, usually what people do is that they’ll give that piece of paper, that Power of Attorney, to that person. So let’s say you’re getting married and you want to give it to your wife. You would give that copy to her and say, “Hey, by the way, if something happens to me, here’s my Power of Attorney. Make sure everything’s taken care of in case I get in a car accident or I’m in a coma or something.” The will is no good until you’re dead.

ERIC:  Exactly, I understand that.

STEVEN:  Right, so if you don’t have one… and it’s happened to lawyers here before where they come to me and say ‘My husband’s in a coma. I need to do a bunch of stuff, but I need Power of Attorney’, but because they’re incapacitated, they can’t sign anything.

ERIC:  Right.

STEVEN:  So, a court application costs roughly $3000.00 to do the court application for Power Attorney for someone who is already incapacitated.

ERIC:  Oh, wow. So that’s a big problem.

STEVEN:  Compared to $100.00 before [laughs], so it’s a big difference.

So, if you haven’t done this Power of Attorney, that authority doesn’t automatically fall to someone else unless you’ve done it. If, say, I’m married and I’ve become incapacitated, it doesn’t immediately fall to my wife?

STEVEN:  For Personal Care, usually the doctors won’t care as much… health wise.

ERIC:  OK.

STEVEN:  Money wise, no. They will say no.

ERIC:  They need that Power of Attorney.

STEVEN:  The main source of worry is getting sued. If that happens, “Oh, don’t worry about it, it’s my husband.” They’ll say, “I’m really sorry, but we really want Power of Attorney before you can do anything.”

ERIC:  Right, that makes sense.

STEVEN:  So, they want to cover their own tracks.

ERIC:  For sure. OK. Makes sense. Great. I want to move along to probate, which you brought up. What is probate? Give me the Coles Notes on probate.

STEVEN:  Basically, the best way I explain probate is… when anybody passes away, whether they have a will or not, it doesn’t matter. It’s all about what they have in their estate. So, let’s say you pass away. You’re a single guy. You have a house and you want to give everything to your kids, let’s say. You were divorced before. It doesn’t matter if you have a will or not, but let’s go with someone who doesn’t have a will. So the kids would say, ‘dad’s passed away, we need to sell the house.’ They go to a real estate lawyer, they need probate before they do anything. Probate is a tax. It’s a court application where you get a piece of paper called a Certificate of Appointment of Estate Trustee that costs a percentage of whatever you’re probating. Say, the house is worth $500,000. It’s a percentage of that: 1.4-1.5%.

ERIC:  OK.

STEVEN:  All it is, is a piece of paper with a gold star on it. That’s what I like to tell people. It’s from the court. It’s a court order that’s basically mentioning you’re allowed to sell the house. Even if you have a will, people will say, ‘why do I still have to do a probate?’ Banks are very scared. Banks do not want to get sued so they’ll say, ‘we need probate before we can release the funds to you.’

ERIC:  Right.

STEVEN:  Say, the person has $100,000 in their account. You’ll hear that a lot. There’s a hundred grand, that’s fine. You’ll show them the will and they’ll say, ‘we want a piece of paper from the court, which is probate, stating that you are the estate trustee and that we’re allowed to release the funds to you.’

ERIC:  So, if you have a will, you’re best off to probate the will, depending on what needs to be sold, and have been appointed by the court as an Estate Trustee, even though you’re already named the estate trustee?

STEVEN:  Sometimes you can avoid probate. You want to try to avoid probate. I’ll explain it a little better. Let’s say, for yourself, you’re getting married. Do you have a house?

ERIC:  Yes. We do.

STEVEN:  Is it your house or is it owned jointly?

ERIC:  It’s owned jointly.

STEVEN:  So, your wife wouldn’t have to probate because it’s owned jointly. It would automatically go to her. Probate is not something that will have to happen to you. You don’t have to worry about that. But, let’s say you have $100,000 in a bank account and it’s only under your name, she has to probate that. She can’t just go and take the money even though that you’re married.

ERIC:  OK.

STEVEN:  Even though that you have a will.

ERIC:  Right, she would still need to probate, because the house would be owned jointly, so if a couple—one of them passes away: the ownership of the house goes directly to the wife.

STEVEN:  —Directly to the spouse, no matter what.

ERIC:  But, if the bank account—

STEVEN:  Only under your name…

ERIC:  Under my name only.

STEVEN:  But if it’s jointly, you don’t.

ERIC:  So, that’s how you get around it. You need everything to be joint.

STEVEN:  There’s two different joints.

ERIC:  OK

STEVEN:  There’s a joint that’s literally 50/50. Then you would have to probate 50% of that house. As long as it is joint—and I believe it is to the survivor, I’d have to ask a real estate lawyer for the correct term, but joint to the survivor, meaning it goes to the other one if one passes away, which is fine. That way, you don’t have to go probate. But, people say, ‘what if I put my son on the title with me?’, but then, the problem is the government gets you there because you have to pay Capital Gains Tax.

ERIC:  Right.

STEVEN:  So, either way you are paying a tax.

ERIC:  OK.

STEVEN:  The only real way is if they live with you and if you own the house jointly. That would save you from probate. Same with a bank account. If you own it jointly, the banks don’t care. Because you’ve already agreed, said yes, ‘If I die…it’s going to be my wife’s or my husband’s account’ you don’t have to probate anything in that case.

ERIC:  OK. If it’s all joint?

STEVEN:  Sometimes there’s nothing. You’re not going to put your son joint. I’ve got a lot of money in there, what if he takes it? Because he can technically do anything he wants with that account. Sometimes you can’t avoid it or the same if you don’t live with them. There’s nothing you can do about that.

ERIC:  What about families who have, say, a family cottage? And the parents own the cottage, probably jointly, and one of the parents passes away? It would obviously go to the parent remaining. Let’s say that the parent remaining is getting older. Is there anything that families can do to avoid paying Capital Gains on a family cottage? Because, I’ve heard of people losing their cottage because they don’t have the money for Capital Gains. Is there a method of sheltering yourself from that?

STEVEN:  There used to be.

ERIC:  There used to be?

STEVEN:  The Government’s changed that unfortunately. There used to be when they would marry, one would own the cottage and one would own the house and they could get away with it, because they’re both technically primary residents. But now they say if you’re married you can only own one house together.

ERIC:  OK

STEVEN:  So let’s say you want to go buy a cottage, you own a house now. You can never claim it as your primary residence. It has to be the cottage, or your house.

ERIC:  And you can’t jointly own those with your children as you mentioned?

STEVEN:  You can, but you will pay Capital Gains. As soon as you change it, then you start paying Capital Gains.

ERIC:  That’s going to be based on what you paid for the place vs. fair market value?

STEVEN:  Exactly. Now it would make more sense to do the cottage, because it won’t gain a lot of capital since you bought it, whereas here in the GTA it can go up $50,000 in a year sometimes because of how fast it goes up. It would make more sense for, let’s say you have kids and they want to own the cottage, put them on the cottage because it’s not going to gain a lot, most likely, depending on where it is.

ERIC:  Right. I’ve heard before from some of the clients that we serve, they could have bought the land 50 or 60 years ago, built the cottage themselves; it didn’t cost them a lot. They worked hard and they saved their money and they did a lot of work themselves, but now that area, say it’s something in Muskoka, now that cottage is worth $700,000 and the kids are left going ‘I can’t afford the Capital Gains on this.’ What happens then?

STEVEN:  They would have to sell it. Either way, they can’t have that cottage unfortunately.

ERIC:  But, the sooner they jointly own it with the kid, the less it would be. The less it would go up.

STEVEN:  Exactly. If they only did it a year ago, there won’t be very much Capital Gains. A lot of people, when I get in, I’ll get an older couple and their younger son or daughter and they’ll say ‘what do I do? Do I do probate?’ They want to know which way to go.

ERIC:  Right.

STEVEN:  And I usually tell them, I can’t really tell you when your parents are going to die [laughs].

ERIC:  Exactly.

STEVEN:  That’s what it depends on. It sounds morbid, but if your parents die tomorrow, Capital Gains is the way to go, because you’re paying nothing. But, if your parents live for another then years, then probate’s probably the way to go. You’ll probably pay less in probate than with Capital Gains. It also depends on where they live: if they live anywhere out of the GTA, because anywhere in the GTA the house market is crazy. For instance, I’m originally from Ottawa. Up in Ottawa, it doesn’t go up all that high each year… maybe $1000-2000 roughly. Downtown would be different, obviously.

ERIC:  Sure.

STEVEN:  In that case, then it’s all a numbers game, really. It doesn’t really matter which way you go.

ERIC:  Got it…OK. So, we’ll go right back to the beginning. End of life planning, you know, we get into this because people are looking to take care of their funeral, for their kids, not only arranging the funeral, but paying for it at the time. But that’s not necessarily the most important part. So: we definitely want people to have a will in place and make sure that it counts. Other than the marriage happening after the date of the will, is there anything else that can void a will?

STEVEN:  Nothing else other than yourself. You can void your own will. You can make a new will. The old one is going to be void. I suggest you shred the old one just in case, because if they can’t find that new one, they’ll use the old one.

ERIC:  And we’ve had those situations where we’ve served families, they’ve shown us the will and they didn’t realize a year later another will comes out of the woodwork and now there are legal issues within the family.

STEVEN:  When we do that, when I do a new will, I usually ask for the old will and shred it.

ERIC:  That makes sense.

STEVEN:  We would rather just get rid of it completely so that there’s no way of it causing any problems.

ERIC:  OK. So you want to have your will in order. You also want to have your powers of attorney in order: both someone in charge of your property, your money, your assets and also your health… and then probate happens after the person has passed away.

STEVEN:  …And that all depends on how you’ve arranged everything; sometimes you can’t avoid it, unfortunately. Sometimes, you can.

ERIC:  If you know that you are going to have to have something probated and you’re someone who wants to look after your family, have you ever suggested to anyone, or seen anyone put money away into an account to cover those costs?

STEVEN:  It doesn’t really matter, because it comes out of the estate. Everything comes out of the Estate anyway. Funeral, legal fees, everything comes right out of the estate. The person that’s the executor or the beneficiaries, it shouldn’t come out of their money. The way you look at it is that everything comes off the top of the estate and whatever is left over gets distributed.

ERIC:  Got it.

STEVEN:  Including income tax and whatever taxes are left on the estate.

ERIC:  Well… it’s definitely something we want all of our clients to know about and I think that I’ve only scratched the surface here with you today. I think probably what’s going to happen, since a lot of people are going to find this so helpful, we’re going to have to come back and see you and drill down on some of these things line by line as we get questions and as things happen. This was a great start and a great way to introduce our clients to some of the things they need to be aware of and the some of things they need to do. I want to thank you very much, Steven, it was great. I look forward to speaking to you more about this kind of thing. Thanks very much!

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