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Estate Planning Guide

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We take this opportunity to advise you that once you have separated from your spouse you should consider post-separation estate planning.

The following information may assist you regarding post-separation estate planning.

A. YOUR WILL

1) Separation does not revoke any bequest you have made to your spouse under your Will. Revise your Will to ensure that you are not leaving anything to your spouse which you would not want him or her to have. Pay particular attention to what will happen when you and all of your children are gone, as the result may be an intestacy under which your spouse will receive everything. This can happen in one of two ways:

a) a common disaster in which you and all of your children die together or

b) your Will calls for a delay in distributing each child’s share until a specified age and none of your surviving children reaches that specified age.
You can avoid this problem by naming an alternative beneficiary for either situation.

2) If you do not have a Will, make one immediately, so as to avoid the intestate succession rules which would give your spouse a preferential share of your estate as set-out by Succession Law Reform Act and all (where there are no children of the marriage) or part (one-half where there are two or more) of the residue of your estate.

3) Once you are divorced, neither of the preceding matters need be of concern to you, as your ex-spouse will be precluded from taking anything under your Will (unless your Will indicates otherwise) or from sharing on an intestate distribution if you do not have a Will.

4) Remove your spouse as an executor of your estate. This will ensure not only that he or she will not administer your own estate, but also that your spouse will not inherit the executorship of any estate you may be administering as executor at the time of your death. (Once you are divorced, an appointment of your ex-spouse as executor of your Will is automatically revoked.)

5) If you are legally obligated under a Separation Agreement to make support payments for your spouse or child(ren), you should ensure that your Will clearly indicates whether amounts to be paid to or for either of them under the Will are to be in addition to, or in satisfaction of, any support obligation.

6) Your Will can direct your Trustees not to pay your spouse amounts intended to benefit a child while the child is in the spouse’s custody, but instead to make payments directly to third parties (for example, camp fees, school tuition fees, dental bills).

7) While your Will cannot wrest legal custody of your child from the surviving spouse from whom you are separated, your Will can indicated your choice of legal custodian for your children in the event that your spouse does not survive you. The person you choose will have legal custody for 90 days. Thereafter, permanent legal custody will require a court application, in which case your choice of legal custodian, while not binding on the court (which will do what it considers in the child’s best interests), will have persuasive value.

8) Remarriage automatically revokes any pre-existing Will (unless the Will indicates otherwise).

B. RRSPs AND LIFE INSURANCE

Neither separation nor divorce will revoke beneficiary designations under your insurance policies (both individual and group), RRSPs, pension and other deferred income plans which permit beneficiary designations where a policy or plan designates your spouse to receive the policy or plan benefits on your death.

C. JOINTLY OWNED PROPERTY

1) Sever any joint tenancy existing between you and your spouse on any real property.

2) Where possible, convert any joint account with your spouse to an individual account in your name.

D. SIGNING AUTHORITY

1) Remove your spouse as signing authority on personal bank accounts.

2) Cancel your spouse’s right to have access to any of your safety deposit boxes.

3) If you own shares of a private company, review the signing authority set-out in the by-laws and banking and other resolutions to ensure that your spouse no longer has any signing authority. You may also have to deliver corporate documents to the bank(s) or other financial institution(s) where the corporation does its business.

E. POWER OF ATTORNEY

Revoke any Power of Attorney you may have previously given to your spouse. Deliver the written revocation to him or her and demand the return of all executed copies. In any event, you should lodge a copy of your written revocation with all third parties to whom your Power of Attorney may have been provided.

F. GUARANTEE

If you have co-signed for any loans or lines of credit acquired by your spouse or by his or her private company, consider giving notice to the appropriate financial institution(s) that you are revoking your guarantee. (This will not let you off the hook for indebtedness incurred prior to your giving notice.) Do not forget to consider any joint bank accounts with overdraft protection.

G. INCOME TAXES

You may have to reconsider your estate plan, to the extent that you are not leaving property or RRSPs to your spouse. That choice may mean the loss of certain tax deferrals which are available under the Income Tax Act for transfers between spouses. As a result, you may have to review your life insurance coverage to deal with any significant income tax liability which may arise on your death as a result of giving up those tax deferrals.

Should you have any questions or concerns respecting all of the above, please contact me.


 

Ottawa Lawyer
Barnes Sammon LLP
400-200 Elgin Street
Ottawa, Ontario
K2P 1L5
Telephone: (613) 594-8000 ext. 260
Fax: 613-235-7578
Email: hgrabowski@barnessammon.ca
Lawyer: Hania E. Grabowski