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1 Name /26937/ch25 02/01/ :30AM Plate # 0 pg 179 Index A Attorney, power of ends on incapacity 14 B Beneficiaries appointment, power of Family Law Act 7 Income Tax Act 7 defined 6 trust capital 107 income 107 C Consent to treatment attorney, incapable person s 80 brother or sister 80 incapable person s guardian 80 incapable person s representative 80 other relative 80 parent of the incapable person 80 Public Guardian and Trustee 80 spouse, incapable person s 80 Constructive trusts claims against estate 39 see also Wills E Estate, claims against 71 constructive trust 71 Estate accounts 58, 66 Estate administration 57 income tax returns 65 intestacy 64 trustee accounts 66 trustee compensation 66 trustees, allocating expenses 66 Estate administration tax, reducing bare trust 61 beneficiaries, designate 61 joint assets 60 two wills 61 Estate freeze 54, 101 Estate plan, protecting 38 constructive trusts 39 Estate planning contracts in 43 drafting considerations 44 elements required 45 corporate share structures 47 classes 48 family business see family business income tax 83 alternative minimum tax 105 capital gains 100 charitable donations 104 early inheritance 99 employment 100 estate freeze 101 foreign owned assets 106 life insurance 105 medical expenses 104 post death losses 105 RRSPs and RRIFs 103 spousal trusts, testamentary 102 TFSAs 103 shareholder s agreement 48 elements 49 Estate trustee 27, 31-2, 36, 38-41, 53, 57-9, 61-6, 72, 88, 97 certificate of appointment 58

2 Name /26937/ch25 02/01/ :30AM Plate # 0 pg ESTATE PLANNING HANDBOOK estate administration tax 58 reducing 60 requirement 59 assets excluded from 60 filing income tax return 93 who are they 37 Example situations second marriage 115 estate administration tax 122 marriage contract 116 powers of attorney 123 right to occupy home 119 RRSP, RRIF, TFSA 118 spousal trust 120 support 118 young family 111 children s trust 113 guardianship 113 insurance 112 survivorship 112 F Family business 125 expanding the business 127 life-cycle 125 ownership structure 126 succession planning 128 Family Law Act, Ontario 67 see also net family property election on spouse s death 69 equalization claims against beneficiary 73 planning for spouse s election 72 G Guardian of property, management plan 76 see also incapacity Guardians of child s person 34 of child s property 34 I Incapacity 75 assessment 77 guardian of property 75 act in best interest 76 management plan 76 temporary 77 personal care decisions 78 management plan 79 medical 78 planning for 81 agency 82 joint bank accounts 81 trusts 82 power of attorney, for property, continuing 75 Public Guardian and Trustee, guardian of property 75 Substitute Decisions Act 75 Income tax capital losses 88, 89 deemed disposition 84, 88 estate income tax return 94 estate planning 83 estate taxes Canadian foreign tax credit 92 foreign 89-91, 106 United States 90 U.S. exemptions 91 family-use property 85 implication of death 84 marketable securities 84 optional personal income tax returns 93, 96 paying income tax on death 87 personal income tax return, for deceased 93-4 personal-use property 87 principal residence exemption 85 rental property 85

3 Name /26937/ch25 02/01/ :30AM Plate # 0 pg 181 INDEX 181 L RRSPs and RRIFs on death 86 spouse or common-law partner trusts 32 Life insurance 51-3, 105 designating estate trustee as beneficiary 53 excluded from net family property 53 permanent or whole life 52 tax planning 54 term, death benefit 52 Life insurance designations 36 see also wills, drafting Living will see power of attorney, for personal care N Net family property calculation 68 equalization 67 excluded 68 matrimonial home 70 property, excluded 68 valuation date 67-8, 70 variation of equalization payment 70 P Personal care decisions 21, 78 make, incapacity to 22 medical treatment 22 Power of attorney 82 for personal care 21 duties 23 living will clause 23 multiple 25 when does it end 25 records 24 personal care decisions 21 for property 13, 19 see also incapacity accounts 18 administrative powers 13 compensation 19 continuing 14 due diligence considerations 15 duties of attorney 17 gifts and loans 17 when does it end 16 power of appointment 13 Precedents 131 Alter-Ego Trust 157 Continuing Power of Attorney for Financial Matters 173 Continuing Power of Attorney for Property 174 Non-Beneficial Transfer 169 Power of Attorney for Personal Care, the Living Will 177 Will for a Younger Couple with Children 147 Will for an Older Couple with Children and Grandchildren 133 S Spousal trusts, testamentary 102 Substitute decision-maker, consent to treatment attorney, incapable person s 80 brother or sister 80 incapable person s guardian 80 incapable person s representative 80 other relative 80 parent of the incapable person 80 spouse, incapable person s 80

4 Name /26937/ch25 02/01/ :30AM Plate # 0 pg ESTATE PLANNING HANDBOOK T Testamentary trust, ongoing 35 Treatment decisions, medical 22, 78 see also incapacity Trust property defined 5 investment criteria 5 investment of 6 Trustees decisions, rule of unanimity 8 defined 7 duty of impartiality 65 investment powers 66 see also estate administration special, assigning different tasks 38 Trusts Accumulations Act 11 alter-ego 63 see also estate administration assets special 5, 37-8, 40 bare 61 see also estate administration tax beneficiaries, income or capital 107 common-law partner 32 constructive 30, 71 defined 1 document, drafting 5 children s 5 drafting 5 establishing 2 income calculation 108 intentional 1-2 inter-vivos 2, 11, 65 tax treatment 107 joint partner 63-4, 82 perpetuities and accumulation, income tax implications 12 property 3 see also trust, three certainties W final distribution 8 sharing 8 purpose, holding special assets 5 resulting 30 revocable inter-vivos 109 rule against perpetuities 9, 109 separate for special assets 38 spouse or common-law partner 32 testamentary, tax treatment 107 three certainties 2 intention 2 objects 3 for persons 3 for purposes 4 subject matter 3 transfer of assets 108 types of, inter-vivos and testamentary 107 when must it end 9 Wills 27 drafting 27, 40 abatement 34 ademption 34 adopted children 33 appointing a guardian 34 see also guardians assets 28 beneficiaries 31 co-ownership by children 33 common disaster clause 31 debts 31 dependants 30 designations of pensions and registered investments 37 estate administration tax 29 know the client 28 lapse 35 liabilities 29 life insurance designations 36

5 Name /26937/ch25 02/01/ :30AM Plate # 0 pg 183 INDEX 183 providing for distributive powers 32 real estate 29 residue 35 share transfers 29 spousal election 30 see also Family Law Act, Ontario trustees, special 38 what works 28 mirror 40 mutual for a couple 40 revoke 39

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