Law Times

Page 12 OctOber 22, 2018 • Law times www.lawtimesnews.com tate is divided between the par- ent, the siblings, nephews, nieces and next of kin. And if there are no survivors, Laredo says, every- thing goes to the government. "Sometimes, people don't want to have wills because they don't think they have anything. Some people don't want to have a will because they think it's ta- boo to talk about death. Some people are just downright ir- responsible and lazy because they talked about getting a will but never got around to it. And some people just don't see the need for a will and so they die and they leave their families in complete shambles, it's a com- plete disaster," says Laredo. In January, the Angus Reid Institute released results of an online poll that surveyed 1,516 Canadians, concluding that 51 per cent of Canadians don't have a will. It found that those aged 55 and older are nearly four times more likely to have wills than those between the ages of 18 and 34 and twice as likely as those between the ages of 35 and 54. Higher earners also report hav- ing a will. By leaving control of who gets what to someone else, the deceased individual has given up an important right that may impact family members in ways that were never intended, says Matthew Urback, a civil litigator and estates lawyer with Shibley Righton LLP in Toronto. When there's a will, it is stamped by the court as being the official certified copy, and then the instructions within the will are followed, says Urback. When there's not a will, how- ever, the survivor's assets are essentially in the court's hands and if there is a family member willing to represent the estate by acting as the estate trustee or executor, they must apply to the court for a 'certificate of appointment of estate trustee without a will' to get the author- ity to act on behalf of the estate, he says. If there isn't an obvious ex- ecutor, says Urback, the statute does lay it out, depending upon the personal situation and status of the deceased. The result may end up surprising the individual who ends up falling into the role if there was never a conversation about what would happen, he says. That law-imposed process, however, may not be what the deceased person had intended, and it means they have forfeited an important right, he adds. An additional detrimental aspect, he says, is that if there's no will, there's likely no estate planning and that means the individual didn't take advan- tage of any tax-saving oppor- tunities, likely leaving less for beneficiaries. "People should be entitled to deal with their assets in death as they are in life — basically, however they want. But if you don't have a will, you're not tak- ing advantage of that right. That means someone else is going to make that decision for you," says Urback. LT don't know it's there, it will for- ever be lost upon the death of the owner because it isn't registered anywhere and can't be tracked. There are indications of an increased reliance upon digital assets and accounts, says Su- zana Popovic-Montag, manag- ing partner of Hull & Hull LLP, where she practises in the areas of estates, trusts, capacity and fi- duciary litigation. She says there is emotional or sentimental value attached to accounts such as social media and cloud stor- age of personal information and photographs. Given that half the Canadian population has no wills and very few of those make accommoda- tions for digital assets, she says there is potential for a great deal of loss, underscoring the impor- tance of advance planning. "It's just natural that we have to start paying attention to them," says Popovic-Montag. She says that planning pro- cess begins with incapacity planning, ensuring the digital assets are acknowledged when establishing powers of attorney or even by recognizing them in standalone documents. She says a spreadsheet, for instance, can list all the digital assets and accounts with the usernames and passwords along with instructions on what to do with them. "Having these kinds of dia- logues [between the lawyer and the client] is really important so they can share with their loved ones what they want done and share it, and that individual can hopefully implement those in- tentions," she says. Popovic-Montag maintains a checklist that begins with the larger accounts to go through with clients so they can address their intent for each one. There is already some indi- cation that identifying and ad- dressing those assets as soon as possible is important. Says Urback, "The amount of people dying who had a massive online presence wasn't as preva- lent as it will be in the coming years . . ." 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You can cancel your order at any time. Subscription coverage: you'll continue to receive ongoing updates until the next edition. Online subscription * with ongoing updates Order # L94022-65203 $129 Print only Order # L7798-8633-65203 $129 Softcover approx. 1000 pages October 2018 978-0-7798-8633-3 NEW TO PROVIEW SAVE 30% with promo code 65862 Michele Allinotte recommends that own- ers of crypto-currency walk through the access process of their accounts with their executor. Lisa Laredo says not preparing a will can lead to 'much confusion' among surviving family members.

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