Your Right to Use Someone’s Real Estate
The Ontario Court of Appeal recently decided a case about one party’s right to use another party’s real property (“real estate” as it is more commonly called): 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91 (CanLII). The case surrounded the doctrine of prescriptive easements. An easement is an interest in land that is owned by another party which entitles the holder of the easement to a specific limited use or enjoyment of that land. It can also be defined as a certain right to use the real property of another person without possessing it. Examples are the authority...
Read MoreDiscussing Your Estate Plan With Your Family
Talking to your family about what you want to happen at your death may make you feel squeamish for many reasons. In fact, it’s a taboo subject for many people, including for the following reasons: Contemplating one’s own mortality can be difficult and upsetting. Some families simply practice or rather, avoid, talking about financial issues that affect the family. For them, it is a matter of privacy and/or they feel that it is none of anyone’s business what they do with their affairs on death. Some people think that not speaking about it is a way to prevent family feuds (or additional...
Read MoreCan You Be Trusted to Keep A Secret?
Secret trusts are an interesting and strange animal indeed! Under common law, it is a form of trust effective on death but which does not actually appear in the will. It may or may not be in writing and usually involves a gift to a person in the will with a statement to that person, either orally or in writing, that the gift is to be held for the benefit or use of another group of people or another person. For the trust to be effective, that apparent beneficiary has to accept the role of trustee even if the words “trust” or “trustee” are not used in the communication. As long...
Read MoreWhat is Land Transfer Tax?
Congratulations, you made an offer to purchase a new home! Avoid the heart palpitations that will come when your lawyer advises you of the closing funds that they will need by way of certified funds by familiarizing yourself with land transfer tax now. Ontario land transfer tax is a provincial tax that the purchaser pays upon completing the purchase of the property. If you buy property within the City of Toronto, you would also have to pay the municipal land transfer tax. Land transfer tax is calculated based upon the value of the property, using the scale below: 0.5% on the first $55,000.00...
Read MoreHenson Trusts – Planning for the Disabled Beneficiary
Families with disabled beneficiaries who are dependent on their caregivers have special issues to consider when planning for the financial resources that will be available to these beneficiaries, including through their estates. The Ontario Disability Support Plan offers assistance to adults with disabilities, but there are limits. If the disabled adult inherits assets directly or they exceed the asset limit set out in the legislation, they may not qualify for the assistance until they have depleted their inheritance. There is, however, an exception. A “Henson Trust” is an...
Read MoreValuation of Assets
When applying for a Certificate of Appointment of Estate Trustee (also known as probate and hereafter referred to as a “Certificate”), it is necessary to pay estate administration tax on the value of assets passing through the estate. In order to calculate the amount of tax payable, a valuation of the estate’s assets as of the date of death must be performed. The estate assets are either personal property or real property (i.e. real estate). Personal property includes any property that is not real estate and that is not transferred to anyone on the death of a joint owner by right of...
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Andrea P. Kelly is a legal practitioner and notary public, called to the Ontario Bar in 2001, with practice focus in Estate Planning and Administration, including wills, estates, trusts and powers of attorney. She also practices Real Estate.
Prior to opening her law firm, she worked in various capacities including litigation support lawyer for the Ministry of Attorney General regarding complex commercial litigation, private practice in corporate/commercial law and numerous legal research and writing positions.