FAQ

I want to transfer ownership of my home to my children; how do I do this and are there any consequences?

ANSWER: In order to transfer the ownership of your home to a child, you will need to engage a lawyer to prepare the applicable Transfer documents. However, before deciding to proceed with transferring such property, you should consider the following: 1) will there be any capital gains tax consequences as a result of transferring this property?; 2) is it your intention that your child or children, become the beneficial owner of the property or is it your wish that your child/children simply hold this property as a trustee?; 3) if you transfer a property so that it is owned jointly between yourself and your child, then your child shall have the same rights to ownership in the property, that you do. This means that your child could demand that the property be sold. If your child has any creditors going after them, then your home could be subject to a claim by those creditors. It is best to speak with a lawyer regarding whether it is in your best interest to transfer your home to your child or children, before taking any steps.

I want to transfer my interest in my home to my wife while she is still alive, what is involved and what are the effects?

ANSWER: In all situations, a lawyer must be engaged to prepare the necessary Transfer documents. However, spouses are granted certain exceptions when it comes to transferring property between one another. Specifically, spouses are able to transfer property to one another for “Natural Love and Affection”. This exception generally allows spouses to transfer property to and from one another without paying land transfer tax. However, tax advice should be obtained to determine whether the transfer of said ownership interest could result in other forms of taxes occurring, such as the payment of capital gains tax.

My spouse just passed away, what happens with their interest in our property?

ANSWER: The answer depends on how title to your property was owned by the two of you. If you and your spouse owned the property as Joint Tenants, then a Survivorship Application can be prepared and submitted to the Land Registry Office, thereby transferring your spouse’s interest to you. If you and your spouse owned the property as Tenants-In-Common, then it may be necessary for your spouse’s Executor to obtain a Certificate of Appointment (probating their estate), in order to obtain the authority to transfer your spouse’s interest in accordance with his or her estate planning instructions.

What is a Will? What does a Will do and why do I need one?

ANSWER: A Will is a document that does two main things: 1) appoint an individual or individuals to administer your estate. Administration typically involves the payment of taxes, debts and distribution the remaining assets to the beneficiaries of your estate; and 2) your Will dictates to whom and in what shares/amount you wish for your property to be distributed, in the event you pass away. Failure to have a Will or even an up-to-date Will, can result in unwanted scenarios where your property is distributed to individuals in ways that you did not wish or intend.

I don’t have a Will. What happens if I die without one?

ANSWER: If you pass away without a Will, then your property will be distributed in accordance with the Succession Law Reform Act. This act details to whom your property will be distributed to. Here is a good link to show the distribution. Additionally, someone, likely a family member, will need to apply to the Court to become appointed as the Executor of your Estate, in order to complete the administration. www.attorneygeneral.jus.gov.on.ca

I have been named as an executor of an estate, how do I manage and administer the estate?

ANSWER: There is no simple or quick answer to this question. Every Estate requires a different amount of work to complete. As an Executor, it is in your best interest to understand your rights, obligations, and duties. A lawyer can provide the necessary guidance to those individuals acting in the role of Executor.

The person I named as an executor in my Will just died, what do I do?

ANSWER: You may wish to amend your Will to name a new Executor if your previously named Executor has passed away. If you pass away while having a Will, but no appointed Executor, then someone, likely a family member, will need to apply to the Superior Court to have themselves appointed as an Executor of your Estate. It is important to keep your estate planning up-to-date.

I want to make changes to my Will, how do I do that? Should I just make a new will?

ANSWER: There are two ways you can amend a Will: 1) prepare a codicil (a short document that deletes and replaces certain sections of your Will); or 2) make a new Will. If you are changing an appointed Executor, then making that amendment by way of a codicil is generally appropriate. If you are changing the distribution of your Estate, it is strongly recommended that you make a new Will, so as to ensure there is no confusion relating to how and to whom, your property is to be distributed upon your passing.

I don’t have a Power of Attorney. What happens if I’m incapacitated?

ANSWER: If you become incapacitated and do not have a Power of Attorney for Property, then the Public Guardian and Trustee is de-facto appointed to manage your property. If you do not have a Power of Attorney for Personal Care, then pursuant to the Health Care Consent Act, any of your family members can give directions to your physician with respect to medical related decisions. In either situation, a family member or close friend can have themselves appointed as your Statutory Guardian of Property and Personal Care by bringing an Application before the Superior Court of Ontario.

I have been asked to be a friend’s Power of Attorney. What happens if this person becomes incapacitated and I need to start using the Power of Attorney. What do I do?

ANSWER: If you have been appointed as an Attorney for Property, you must always remember that you must act in the best interest of the individual who appointed you. What you should do when acting as the Attorney for Property is dependent on the circumstances of the individual who you are representing. You should consult a lawyer to get advice relating to what appropriate actions you should take.

What do I need to do to protect myself when acting as an executor of someone’s estate?

ANSWER: As an Executor, you have a number of duties to both the beneficiaries of the estate, as well as a duty to ensure that the deceased’s taxes and debts are paid in full. Ensuring that you abide by these duties is paramount to ensuring you are protected from any third-party liability. As a final means to protect yourself, once the administration of the estate is complete, you may request the beneficiaries/creditors to sign releases confirming that any obligation owed to them has been satisfied and they will not pursue action against you as the acting Executor.

I have been named as an executor for a family member, but I don’t know where the original Will is, what do I do?

ANSWER: If you know there exists an original Will, you should do your best to search for it. You may wish to contact the Law Society to see if the Will has been deposited with them. You may also wish to contact the deceased’s lawyer, if you know who this person is. If the Original Will cannot be found, there are exceptions where an Application can be made to the Court using a copy of the original Will. However, you will need strong evidence to support the notion that the deceased did not take steps to destroy his Will. Otherwise, if you cannot find any Will or any copy of a Will, then the deceased’s estate will be distributed in accordance with the laws of Intestacy (as if they passed away without a Will).

I want to set up a trust for my children. What do I do? What is involved?

ANSWER: In order to create a Trust, a Trust Agreement must be prepared. Generally, these forms of agreements are fairly complex and deal with a wide-range of issues. The just of setting up a trust is such that, a Trustee is given assets (money/property), to be held by the Trustee for the benefit of beneficiaries. The Trustee is either given specific directions for what they can do with the trust property or they are given the discretion to determine how and in what ways the trust property will benefit the beneficiaries. A trust requires a great deal of foresight into one’s future, as Trusts are generally created for long-term goals. Trusts are also a great means of setting up one’s estate planning.

What is estate administration tax? How do I limit the amount of tax paid?

ANSWER: In Ontario, there is no death or inheritance tax. Instead, the Province has implemented Estate Administration Tax. This tax is equal to an amount that is approximately 1.5% of the total value of the deceased property. However, this tax is only payable in the event a Certificate of Appointment is required. Consequently, where a Certificate of Appointment is not required, then Estate Administration Tax is not payable. You should speak with a lawyer regarding how your estate may be setup to minimize the need for having to pay Estate Administration Tax.

What is a Trust?

ANSWER: A Trust refers to a group of relationships, all governed by a single Agreement, a Trust Agreement. A Trust is created when a Settlor (the person creating the Trust), gives property to a Trustee (the person holding the trust property), who is then required to hold said property on the behalf of and for the benefit of Beneficiaries. The Trust Agreement establishes this three-way relationship and governs the rights, duties and obligations of each party.

I am thinking about loaning out money as a form of investment. Do I need a lawyer?

ANSWER: It is becoming quite common for individuals to loan of small or large amounts of money, as a means of investing. The question that generally arises along side this venture is, should I secure my loan by way of a mortgage? Where a loan is secured by way of a mortgage, then you as the lender will require a lawyer assist you with preparing the loan documents and registering the mortgage.

I want to incorporate a business, what do I have to do?

ANSWER: Incorporating a company occurs following the registration of Articles of Incorporation with the appropriate Ministry and paying an incorporation fee. Anyone can incorporate a company using the provincial or federal government websites. However, before incorporating, you need to think about the structure of your business. Will there be multiple Directors/Officers? Will there by multiple shareholders? Where will the Company be carrying on business? This information will influence how you prepare the Articles of Incorporation, which will form the basis of your company’s internal structure.

I have become a director and officer of a company. What exposure do I have? What risk should I be prepared for?

ANSWER: Acting as a Director of a company carries with it certain obligations. You as a Director have a fiduciary duty to act in the company’s best interests. This means that you must always put the company’s interest before your own personal interest. In terms of risks, Directors are sometimes indemnified by the shareholders of a company. However, where a Director has acted in bad faith, negligently or fraudulently, he or she can be found personally liable for such actions. Directors may also be found to be personally liable for the failure of the corporation to file taxes.

My friend and I want to start a company together, what should I do to protect myself?

ANSWER: If you and another individual/s wish to start a business together, you should first consider what business structure you wish to use. Specifically, do you wish to start a partnership, a corporation or enter into a Joint Venture Agreement? The answer to this question will determine what form of agreement you may use to set out the rights and obligations of you and your business partner. The best means of protecting yourself in any business scenario is to determine the terms of the business relationship, before starting the business and put those terms in writing. You may find that you and your business partner do not see eye-to-eye on certain matters, which may lead to conflict later on. It is easy to get into business with someone. It may not be as easy to get out of business with that same person if the terms of your business arrangement have not been clearly spelled out.

What is a shareholder agreement? My business partner wants me to sign one, should I be concerned?

ANSWER: A Shareholder’s Agreement is a form of agreement that sets out the rights, duties and obligations of the shareholders of a company where there are two or more shareholders of the company. If there are multiple shareholders of a company and no shareholder’s agreement, then determining the rights/duties of the shareholders shall fall under the default corporate legislation applicable to that form of company (Provincial or Federal). Having a Shareholder’s Agreement ensures that your rights as a shareholder have been explicitly determined and are not subject to interpretation. This can become especially important if you or any of the other shareholders wish to exit the business.

I’m thinking of buying a business, what things should I be looking out for? What should I do next?

ANSWER: Before committing yourself to purchasing a business, you should always conduct due diligence on the internal workings of the business. This typically involves examining the business’s financial state, how it current operates, what its debts are and the status of its employees. You may wish to get an accountant involved at an early stage to review the company’s financial state. Once you are satisfied with your due diligence of the company, a formal agreement to purchase the business shall need to be prepared. Retaining a lawyer to guide you through the process of purchasing a business can help protect you from running into any issues.

I’m going to retire and I want to sell my business? Where do I start?

ANSWER: Depending on the nature of your business, you may wish to hire an agent of sorts to help market the sale of your business. You may also market the sale of your sale business yourself. In either scenario, you should contemplate what terms you would be agreeable with accepting, with respect to selling your business. For instance, did you want to sell you company for a lump-sum to be paid at once? Would you accept payment for the business to take place over a period of time? Did you want to continue working in the business for a period of time and slowly phase out and hand over control-ownership to the buyer? Agreements to sell businesses can be drafted in many different ways, each to suit your specific wants and needs.

My business partner wants to sell me some of his shares, how do I do this?

ANSWER: In any situation of either buying or selling shares of a private corporation, a share transfer agreement shall need to be prepared and signed by both parties. The terms of this agreement should be discussed by both the buyer and seller, before either side has an agreement drawn-up. Once the terms have been reached, a lawyer may be retained to prepare the share transfer agreement or, review an already prepared form of agreement.

What is a Corporate Minute Book and why do I need one?

ANSWER: A Corporate Minute Book simply refers to the collection of a corporation’s internal organizational documents. This collection of documents tells the history of a company, such as: who are the directors/shareholders/officers of the company, how many shares have been issued by the company and at what price, whether any individual has retired from acting as a director/officer of the company or have sold his or her shares. Keeping your Minute Book up-to-date is generally required under provincial legislation. It is also important to keep your Minute Book up-to-date in the event your company is audited by CRA.

A business prospect I met approached me about a joint venture. What is a Joint Venture?

ANSWER: A Joint Venture is a form of business structure, where two or more individuals wish to collaborate together, with a view to completing a specific goal. A Joint Venture Agreement details the rights and duties of each individual party, throughout the collaboration venture. Generally, Joint Venture Agreements are used where the parties working together wish to be separate and apart as to their own liability/funding/profits. An example would be where an investor works together with a home builder. The investor provides the funding for the project, while the builder builds the homes. Both parties could, in that scenario, continue carrying on their own separate businesses, but work together for completing that specific goal of building a home.

I’m a business owner and I need to rent commercial space, what should I be concerned with in a commercial lease agreement?

ANSWER: When entering into a commercial lease, you should always read and understand the terms of the lease. Commercial leases, unlike residential leases, are not subject to the same form of rent control or carry with them the same form of rights that residential tenants have. The rights that a commercial tenant have, are typically whatever is stated within the lease. In order to protect yourself and ensure that you have not agreed to an overly broad or cumbersome form of agreement, you should have a lawyer review your commercial lease before signing it.

I’m new to commercial property ownership and I’m renting commercial space, my commercial lease agreements with my tenants are expiring, should I create new ones?

ANSWER: The answer to this question depends on what your existing lease says. If your existing lease has permitted the tenants to extend the term of their lease, then you would not be permitted to change the form of lease. If, however, there was no obligation contained within the lease that allowed the tenants to extend the term, then a new form of lease could be created. You should then ask yourself whether it would be to your benefit to create a new form of lease, or if the existing form of lease is satisfactory.

It’s time to close my business down and wind things up. How do I do this?

ANSWER: The answer to this question depends on what form of business structure your current business is. If your business is operating as a corporation, you require the consent of the Ministry to wind-up the company. If you are operating as a Sole Proprietor, you can simply wind things down, provided your obligations to creditors continue to be met. If you are operating within a partnership or joint venture, you should refer to the terms of the partnership/joint venture agreement that deal with the winding down of the business.

I’m a business professional and want to form a partnership with some people I know, and some that I don’t know well, how should I do this?

ANSWER: If you wish to create a partnership with one or multiple individuals, a Partnership Agreement should be prepared. During the process of negotiating and preparing the Partnership Agreement, each individual partner should retain his or her own legal counsel, to provide advice with respect to the contents of the Agreement.

I’m concerned with creditors access to my business and want to creditor proof myself and my business, what should I do?

ANSWER: Creditor Proofing one’s business is a complex and fact specific venture. There are many different ways you can protect your personal assets and the assets of your business. In all situations, you should obtain legal advice and tax advice with respect to reorganizing your assets to creditor proof your assets.

Do the Lawyer’s from Nichols Law make house calls?

ANSWER: If mobility is an issue, one of our lawyers would be happy to attend at your house to meet with you to discuss your matters. Simply ask about this service when phoning our office.