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CDN:He agreed to be an executor and it cost him seven years of his life and $100,000

Post by Webscout » Mon Jun 15, 2020 8:05 am

Sunday, June 14, 2020
He agreed to be an executor and it cost him seven years of his life and $100,000
Lynne Butler, BA LLB

If there was ever an executor who went through a nightmare, this must be it. Terry Dooley, an accountant in Toronto, agreed to be the executor of his client's estate. When the client, Martin Williamson, passed away, the client's daughter contested the will, beginning a 7-year legal battle.

The estate was valued at 7.5 million dollars. Mr. Williamson left two wills that divided his estate among his common-law wife (not his daughter's mother) and his friends. His daughter was not left a part of the estate, apparently because she was taken care of in the final settlement Mr. Williamson made when he split with her mother.

In any event, the daughter challenged the wills on the basis that her father was influenced into making his will and leaving her out, that he had delusions that prevented him from making a valid will, and other grounds. Both of the wills were struck down by the court as being invalid on the basis that Mr. Williamson did not have capacity to make the wills. The trial judge commented that the medical evidence given at the trial was "compelling". With no valid will, the estate passed to the daughter under intestacy rules and she received the entire amount.

In addition, the judge left Dooley and the trustee who was handling trusts under the will, with a legal bill of $900,000 to pay personally. This is over and above the $100,000 Dooley had already paid his own lawyer. I note that when the trustees appealed the costs award to the Ontario Court of Appeal, they received no relief. The Appeal Court said that both Dooley and the other trustee had been "adversarial and unreasonable in refusing to consider offers of settlement that were less than the result obtained and that they took unreasonable positions such as the hiring of a private investigator and claiming costs double those claimed by the respondent following trial." So the costs against them were very much tied to the court's perception of how the trustees behaved. Also, the judge said that since the daughter had won the trial, paying costs out of the estate would be the same as the daughter paying the costs, which wouldn't be fair.

This sounds like one of the nastiest estate fights I have heard of in a long, long time. No estate fight is pleasant, but this one involved allegations of everything from bribing witnesses to "the common law wife only being in it for the money".

If you've ever been asked to be an executor, keep this case in mind. Personal liability for executors is real. If you feel you must go ahead with the job and you can sense trouble coming, consider executor's insurance.

To read a more detailed story about this case from The Toronto Star, click here.

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https://www.thestar.com/business/personal_finance/2020/06/01/becoming-an-estate-executor-can-cost-you-more-than-tears.html
If you'd like to read the case (Sweetnam v WIlliamson) for yourself, click here.

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https://www.canlii.org/en/on/onsc/doc/2016/2016onsc5110/2016onsc5110.html

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Why don't all wills need to be probated?

Post by Webscout » Sun Nov 15, 2020 10:05 am

Saturday, November 14, 2020
Why don't all wills need to be probated?
Lynne Butler, BA LLB East Coast Canada

Recently a regular reader of this blog (looking at you, Webscout) asked me why probate of a will is not required every time a testator passes away. I thought a discussion of that topic would be interesting for all of you readers, so here goes.
The authority to act as an executor comes from the will, not from the probate of the will. Therefore, if the administration of the estate can be accomplished without probate of the will, the executor is entitled to skip the probate process. Such a case might be where the testator who died owned a house jointly with his wife and named her the beneficiary of his RRSP and had no other major assets. Given that scenario, it is unlikely that probating the will would be of any benefit to the estate.

Perhaps it would be useful to understand why going through the probate process (and by this, I mean the courts) is sometimes necessary. Generally speaking, the reasons that give rise to the need for probate are:

- There is real estate in the name of the deceased alone. Land registries and land titles offices will require that a will is probated before they will allow the executor to sell or transfer land that is owned solely by the deceased. This is because the probate order is an order of the court declaring the will to be valid and to be the document that all are to recognize as the will. It eliminates the possibility that someone will later come forward with a different will and accuse the land registry of illegally transferring property. In other words, the probate order indemnifies the land registry.

- The assets are of a high value. When any sort of asset has a high value, even if it's simply a bank account with a large balance, the bank or investment company will almost always insist that the will is probated before they will release funds to the executor. This is for the same reason as I described for the land registries; the probate order indemnifies the bank from someone coming forward later and saying they have a valid will for the deceased.

- There is something questionable about the will. When there are mistakes in a will or language that can be read two ways (very common in home-made wills but it happens in lawyer-made wills too), it's not within the executor's powers to interpret what it means. Only a judge can do that. If the will is not correctly signed or witnessed, again, it isn't within the executor's power to fix it. In such cases, a will might be sent to the court for a decision by a judge as to whether it is valid, or whether it needs to be litigated or interpreted.

- There are claims or potential claims against the estate. Sometimes the point is simply to start a limitation period running. For example in some places a spouse has six months from the date of probate to bring a claim against the estate. If you never file for probate, that claim period stays open. In other cases, probate is requested simply to ensure that there is a court file open so that the litigants have a way to approach the court.

If things are straightforward and none of these situations apply, it is possible to carry on with an estate without asking the court to probate the will. Keep in mind that these are general rules, each with dozens of possible applications. There is also the matter of keeping the peace among contentious family members. Last year I had a case in which an executor who had none of the above reasons to probate the will was accused - by way of a lawsuit - of concealing assets by deliberately avoiding probate, So sometimes you just do what you have to do to get the estate finished.

If you are in doubt about whether a will needs to go to probate, take it (along with any codicils, lists, notes, etc) to an estates lawyer for a chat.

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CDN: How do ensure the children get the house.........

Post by Webscout » Tue Feb 09, 2021 8:48 am

Monday, February 8, 2021

How do ensure the children get the house if one spouse dies and the other remarries?
Lynne Butler, BA LLB-East Coast Canada


This is an interesting question from a reader. How do you ensure that the children get the house if one spouse dies and the other remarries? It's a frequent question, so I thought many readers would like to discuss it.
"Regarding wills. We are married with two kids. We jointly own a home. Say one spouse passes away, and surviving spouse enters into second marriage. What can I proactively do now to ensure that the home will go to the kids."

This is a discussion I have often with clients, especially when the children are young. There is a genuine concern that if one spouse dies, the other will re-marry and potentially leave everything to their new spouse. This would leave the kids out in the cold.

Many couples make "mirror" wills in which they leave everything to each other, and on the death of both of them, leave everything to the children. If one dies, the other is legally allowed to change the will and leave the estate to whomever he or she wishes. There is no legal obligation to give the estate to the children just because it was said in a mirror will. While some couples are prepared to take the leap of faith that the other will look after the children, others are not.

The way things are set up right now, according to your note, the home is going to go to the surviving joint owner. Even if you say in your will that you want it to go to the children, it won't. This is the legal arrangement known as "joint ownership with right of survivorship".

There are different ways to arrange your legal and financial affairs. In this case, you have specifically mentioned the house so we'll focus on that. For example, you could set up a will in which you leave the house in a trust for your children. But - and this is a BIG one - you have to balance off that goal with your other goals in life. In order for you to leave the house in a trust in your will, it has to belong to you alone. That's easy enough to arrange if your spouse agrees, but is it a good idea? Is the goal of leaving the house to the kids a bigger goal than protecting each other if one dies? Would your spouse even agree to the arrangement knowing that he or she could lose the house on your passing or on divorce? Would your bank allow it if both of you are on the mortgage? Are there business or creditor reasons for not having the house in just one name?

There's more to think about than just one goal. Everything has to work together.

At this point in the discussion, we often look at other solutions. One is a mutual will. This is a specific sort of will in which two people set up their mirror wills as mentioned above, but with a difference. In a mutual will, there is a specific paragraph that says both parties agree never to change their wills without the permission of the other. Now, on the face of it, that might seem to solve the problem. However, what if one of you does die and does remarry? Now you have a will that leaves everything to your children and nothing to your new spouse. Don't forget we have dependent relief laws that require us to support our spouses in our wills. This could very easily end up in court.

Mutual wills can be done, but they seriously restrict your future ability to change your will to meet changing circumstances. They have to be drafted extremely carefully and only after a thorough discussion. I rarely do them at all.

Another possibility is to set up a trust while you and your spouse are living, as opposed to setting up a trust in your will. We call this a family trust. You could set up a trust to hold the house (and other assets) and name your children among the beneficiaries. Again, this idea won't work for everyone and may well restrict your ability to deal with your assets while you are alive. There are usually also tax consequences when assets are moved into a trust. You also have to pay a lawyer to draft the trust agreement

Another solution might be to change your focus away from leaving the children the home. Is the home something that simply cannot be replaced, such as a homestead that has been passed down through generations? If not, consider leaving the children some other inheritance, such as money. This can easily be done by buying a life insurance policy that names your children as beneficiaries, or by setting up a bank account specifically for your children.

Might I also take this opportunity to remind you that when your children are adults, they will not all live in the home. It is extremely difficult for siblings to deal with a home that is left to all of them. Even in families where people get along, it's a punishment. I always tell my clients that only the parents who really hate their children leave them all the family home together.

You will note that I have not suggested putting the children's names on the home as joint owners. That's because it's usually a bad idea. Not always, but almost always. If you add a child's name to your home (and the child has to be an adult for you to do this) then you risk losing the home if the child gets divorced, loses his/her business, or is sued. You also cannot sell or mortgage your home without the child's consent.

I hope what you'll get out of this post is that there are legal arrangements that can be made, but nothing happens in isolation. Everything - your will, joint ownerships, life insurance, tax - has to work together and focusing too closely on one goal can put other goals in jeopardy.

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New wills and estates blog for Saskatchewan

Post by Webscout » Wed Feb 17, 2021 8:31 am

Tuesday, February 16, 2021
New wills and estates blog for Saskatchewan
Lynne Butler, BA LLB -East Coast Canada

Readers from Saskatchewan are in luck! There is a new blog out of Saskatoon that is dedicated to local wills and estates issues. The contents of the blog are written by lawyer James Steele, who has written a couple of guest posts for our blog along the way. James is very experienced in wills and estates and has valuable insights to share.

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https://skestatelaw.ca/

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Ontario raises small estate limit to $150,000 +

Post by Webscout » Wed Mar 17, 2021 9:21 am

Ontario raises small estate limit to $150,000 - SEE more
The move, announced Friday, takes effect Apr. 1, 2021

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https://www.investmentexecutive.com/news/industry-news/ontario-raises-small-estate-limit-to-150000/
https://www.investmentexecutive.com/news/industry-news/survivors-could-now-receive-more-if-their-spouses-die-without-a-will/

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The LEGAL/JUSTICE POST-Thursday, March 25, 2021

Post by Webscout » Fri Mar 26, 2021 9:00 am

CDN-Can beneficiaries insist on seeing an accounting of the deceased for the time prior to death?
Thursday, March 25, 2021
Can beneficiaries insist on seeing an accounting of the deceased for the time prior to death?
Lynne Butler, BA LLB-East Coast Canada
NOTE-While this post refers to Canada some of this might well apply to the USA and other countries. Consult with your Lawyer.(Webscout)

Today I want to answer a question posted on this blog recently by a reader. It's one of those questions that I have heard dozens of times, so I know it affects many of you. Here is the question followed by my comments:
"Can a Beneficiary ask to see bank statements of the deceased prior to their death? We have presented an account of informal accounting of the deceased but now they are asking for accounting records of the deceased prior to death."

The thing about this sort of question is that the answer is never a simple "yes" or "no". When answering this type of question, I like to start with what the law gives parties in terms of rights, and then talk about how it plays out in real life.

Beneficiaries who share in the residue of the estate are entitled to a full accounting of the executor's treatment of the estate. They are entitled to ask for supporting documents and to insist that the accounting is accurate and complete. If the beneficiaries do not find the accounting to be satisfactory (within reason, of course), they can raise objections during a passing of accounts so that a judge becomes aware of any shortcomings.

The question is: does an accounting include things that happened before the executor took control of the estate?

On the face of it, the answer is "no". An executor should not have to justify or explain transactions that happened before he or she was involved.

But of course, it's not that easy, is it? An executor is responsible for obtaining a full accounting from anyone who acted under an Enduring Power of Attorney for the deceased. So in a roundabout way, the executor, while not responsible for the transactions, is responsible for finding out on behalf of the beneficiaries what those transactions were. This becomes part of the accounting. In addition, an executor is responsible for producing an accurate inventory of what is in the estate, so beneficiaries who do not believe that inventory is accurate are entitled to question it.

Whenever I am asked whether a beneficiary can demand to see transactions that happened before the deceased's passing, I know one of two situations has arisen (or possibly both). One is that the person who is the executor was also the POA and the beneficiaries suspect that not everything that the POA did has been accounted for. The second scenario is that the beneficiaries believe there should be significantly more assets in the estate than are shown by the executors.

When the executor in this question is my client, I will of course talk about rights and the law, but more importantly, I will want to talk about what the executor is going to do. I try to keep my clients out of court if possible and I want my client to take action that will protect himself, but still keep the estate out of court and on an even track. So I'll ask my client, as I would like to ask the reader who posed this question, if there is any reason why the pre-death records cannot be produced. Are the records not available? Will they cost money to obtain? Do they show something incriminating? Or is it all about not buckling under to beneficiaries because you don't like the insinuation that you've done something wrong?

If providing a bank statement can prevent a lawsuit, I will most likely recommend that the statement be produced. Can the beneficiary insist upon it? Probably not, if the executor was not the POA. Can the beneficiary cause delays and costs by asking the court to compel production of the statement? Yes.

It's really not unusual to see beneficiaries surprised or shocked that there is less in an estate than they had expected, as I mentioned above. They don't always take into account that a parent was paying for long-term care or that the house fetched less than expected when it was sold. Unfortunately, this very often results in the beneficiaries immediately becoming suspicious - even if there is no concrete reason for that - and the target is the executor because he is the one in control. So sometimes producing those bank records is the easiest way of showing that there is absolutely nothing wrong in the estate other than unrealistic expectations by the beneficiaries.

I realize that this is more of a discussion than an outright answer but that's how it is with legal questions. There is a lot to consider, and every single action you take as executor or beneficiary is the result of weighing rights against practicalities.

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CDN-What if the will gives away an asset that is subject to an agreement for sale?

Post by Webscout » Sat Apr 03, 2021 1:27 pm

Friday, April 2, 2021
What if the will gives away an asset that is subject to an agreement for sale?
Lynne Butler, BA LLB East Coast Canada

In my work this week, a situation arose that I thought would be interesting for many of you executors out there.
A man passed away, leaving a valid will. In his will, he left a vehicle to his nephew. However, at the time the man died, he had agreed to sell the car to a neighbour. The sale to the neighbour was in writing but the car was still parked in the deceased man's driveway and the money hadn't yet changed hands. The executor of the estate asked me who is supposed to get the car.

The sale agreement is valid and the executor is legally bound to complete it. The executor must step into the place of the deceased man and carry out the deal to sell the car to the neighbour. This is true of other assets as well; anything subject to a valid agreement for sale would be in the same situation.

This means that the nephew does not get the car. Nor does he get the money from the sale of the car unless the will specifically states that he does. The will can only distribute what is legally in the deceased's estate, and according to law, that car was no longer in the estate.


WHAT do you think?

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CDN: For Executors

Post by Webscout » Sun Apr 25, 2021 9:01 am

CDN: For Executors

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Probate or Administration: Which One do I Need?
https://www.youtube.com/watch?v=9QprN8hK6IQ&t=692s
Executor's Accounting - Why You Need One, and What To Do if Money is Missing
https://www.youtube.com/watch?v=jXzbQrBmsZs&t=467s
What is a Release? (and why should an executor get one?)
https://www.youtube.com/watch?v=wKNoowFqDFw&t=351s
5 Estate Planning Misconceptions (Part 1)
https://www.youtube.com/watch?v=0rOn03EE4PM&t=86s

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CDN:Yes, you need a will. Here's an example of why.

Post by Webscout » Mon Apr 26, 2021 8:21 am

Sunday, April 25, 2021
Yes, you need a will. Here's an example of why.
Lynne Butler, BA LLB-East Coast

NOTE-I would think this applies to everyone? :idea:

I recently read this article on one of the many legal blogs I love to read. It's entitled "Do I Need a Will?", a question that we lawyers hear constantly. Check out the article by Ontario lawyer David Wagner of the firm Wagner Sidlofsky

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https://www.wagnersidlofsky.com/do-i-need-a-will/
. I particularly like this article because of the example it gave for how, without a will, your estate could be distributed in a way that you simply would not want. In this case, the applicants to the court were the children of a common-law partner the deceased had split up with 30 years ago. How's that for an unexpected turn of events?
Though this article specifically mentions Ontario law, the same principles apply across the country. If you don't want a strange outcome, a fight, delays, or for your hard-earned money to be eaten up by legal fees while everything gets straightened out, then see an experienced will-planning lawyer and get it done.

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CDN:POA does not allow you to change a beneficiary designation

Post by Webscout » Mon May 03, 2021 9:18 am

Sunday, May 2, 2021
No, acting under a POA does not allow you to change a beneficiary designation, even if it matches the will
Lynne Butler, BA LLB-East Coast Canada

I'm always glad that people ask a question before going ahead and trying to take steps that end up being a problem. This reader is asking about a step that I hear about often, which is a person under a Power of Attorney attempting to change a beneficiary designation on behalf of the incapacitated owner of a registered financial instrument. In fact, I have just last week concluded a lawsuit which began because a person acting under a POA tried to do exactly that with both an insurance policy and a RRIF. The bank and the insurance company both stopped her, but it soon turned into a big schmozzle and I was hired by the person who was the beneficiary named by the incapacitated owner. I honestly don't think she was a bad person; she just didn't realize the limit of her legal authority.
Here's the question:

"If the POA has moved from spouse to child - due to spouse's passing - can the child POA update the benefiary - which still lists the deceased spouse - to the division amongst all children that is written in/ supported by the will?"

The short answer is: absolutely not!

Your obligation under the POA is to keep things running, maximize the estate, and safeguard the finances of the person you are looking after. You don't have the right to change his or her plans as set out on a life insurance policy, LIRA, RRSP, RRIF, or any other policy or plan on which the person has made a designation. When the named beneficiary is deceased, the proceeds will be paid into the owner's estate.

You mention that the will leaves the estate to the children and therefore it may seem that you are simply updating the designations to match the will. But you do not have the legal authority to do that.

Beyond the question of authority, there is also the fact that leaving money under a beneficiary designation and leaving it under a will do not always have the same outcome. You may think you are "matching the will" but that may not be the case. Let me give you an example.

Let's say a Mom has a RRIF that leaves money to five children. There is also a will that says the estate is divided among five children, and if one of the five should predecease Mom, that person's share of the estate goes to that predeceased person's children. Very common situation.

Now let's say that one of the five predeceases the Mom. Now the RRIF goes among the four surviving children. There is nothing to give the children of the child who passed away because the RRIF is paid directly by the bank and is not controlled by the will. There is unlikely to be anything on the RRIF itself that gives a gift over to grandchildren. Instead of each child getting 20% of the RRIF, each gets 25% of it. However, the tax for the RRIF comes out of the estate, so it reduces the inheritance for ALL beneficiaries, including Mom's grandchildren who did not get a share of the RRIF but who will share in whatever is left in the estate.

If that same money was not in the RRIF but was in the estate, the share of the predeceased child would take the portion that their parent would have received. The tax still comes out of the estate, but at least they will receive part of the RRIF money. In addition, the will can control the age at which beneficiaries inherit so that they don't get a cheque for the full amount on the day they reach the age of majority.

Also consider that if a beneficiary receives RRSP or RRIF money but there isn't enough in the estate to pay the tax, CRA will pursue the individual beneficiary for the tax. This is quite a different scenario than leaving a taxable instrument to the estate, which does not involve the beneficiaries in personal tax liablity.

So you see, changing a beneficiary designation changes more than you think.

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CDN:Handbooks for self-represented litigants from Canadian Judicial Council

Post by Webscout » Fri May 14, 2021 9:26 am

Handbooks for self-represented litigants from Canadian Judicial Council
Lynne Butler, BA LLB-Canada
Here is a new resource that some of you might find helpful. The Canadian Judicial Council has produced three handbooks for representing yourself in court. The three handbooks are civil law, criminal law, and family law. They are online and available at no cost by clicking here.

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https://cjc-ccm.ca/en/what-we-do/initiatives/representing-yourself-court
The materials look pretty thorough and even contain some worksheets to help you build your case.

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CDN:My Mom bought a house jointly so how can she leave it in her will?

Post by Webscout » Sun May 16, 2021 8:07 am

Saturday, May 15, 2021
My Mom bought a house jointly so how can she leave it in her will?
Lynne Butler, BA LLB Canada-East Coast

Words don't always mean the same thing in law as they do in common English usage. This fact will always cause confusion. Here is an example of how the word "joint" as it applies to real estate can be misconstrued. This is a note from a reader, with my comments below.
"My mom just bought a house jointly with her cousin. She told me her lawyer told her they can both still leave their half of the house to their children if they have a will. She told me her lawyer said if they own it in common, if one of them dies, they can be forced to sell their half of the house or forced to sell the house if the person who inherited the other half chooses to sell. Is this true? Everything I've read says if you own jointly, you can't will it to your children. Can you own a house jointly and put in your will that your kids get your half after the cousin passes?"

What is happening here is a misunderstanding of the word "joint". People always use this word when there is more than one name on a title, but it isn't always correct. Your mother did NOT buy a house jointly with her cousin. She bought a house as tenants-in-common with her cousin. The fact that they both own the house does not make it joint. Sure, in common English language that makes sense, but not in legal terms.

What I love about your situation is that the lawyer who did the land transfer took the time to explain to the clients the consequences of the arrangement they were making. This is the only way for a lawyer to make sure that he or she is setting things up in a way that will suit the clients' goals. Your Mom has a good understanding of what she has gotten into.

If your mother had set up the title as joint owners, she could not leave it to her children in her will, just as your reading confirms (unless, of course, the cousin had already passed away). This is because joint ownership of property comes with a right of survivorship that automatically entitles the owner who outlives the other the right to own the property. However, tenants-in-common is very different. In that case, there is no right of survivorship. Each person owns a defined portion of the property and can give his or her piece away in the will.

The part about being forced to sell the property is also correct. Tenants-in-common arrangements have their advantages and purposes, as do all different set-ups, but they can get tangly after the original owners pass away. Let's say, for example, that your Mom passes away and leaves her share of the house to her children. Now there might be, say, four people on the title. Then the cousin passes away and leaves his half to his children. Now there are, say, seven people on the title. By now, things are out of control. With that many owners, how do they agree on who will live there, whether it can be rented out, who fixes the damaged roof, who pays the property tax, who is to blame for nobody paying for insurance? In the end, it's often because of this kind of unworkable title that property ends up being sold. All of those people cannot realistically share one house. If all of the owners can't agree on what to do, one of them will take it to court and ask a judge to order it to be sold.

In a best-case scenario, one owner would buy out the others, assuming they can all agree on a price.

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Personal Finance-Bill and Melinda Gates-Divorce

Post by Webscout » Thu May 20, 2021 8:56 am

Personal Finance-Bill and Melinda Gates-Divorce

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https://financialpost.com/personal-finance/bill-and-melinda-not-the-only-high-net-worth-couple-whose-divorce-playbook-is-ahead-of-the-curve

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CDN:Death, taxes and your RRSP...

Post by Webscout » Tue May 25, 2021 8:54 am

CDN:Death, taxes and your RRSP...
Referred to by Lynne Butler-FYI

Secondly, if you're an executor, it's a good idea to request a Tax Clearance Certificate from CRA so that you know you're free of tax tangles before you distribute the estate.[LButler...]

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https://financialpost.com/personal-finance/taxes/death-taxes-and-your-rrsp-what-you-need-to-know-to-minimize-the-tax-hit-to-your-estate

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Planning Ahead: A look at recent changes to Ontario estate law

Post by Webscout » Fri Jul 23, 2021 8:56 am

Planning Ahead: A look at recent changes to Ontario estate law

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https://www.paveylaw.com/recent-changes-to-ontario-estate-law/

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