CERTIFIED SPECIALIST PROGRAM ESTATES & TRUSTS LAW DEVELOPMENTAL PHASES AND LEARNING CRITERIA

Transcription

1 CERTIFIED SPECIALIST PROGRAM ESTATES & TRUSTS LAW DEVELOPMENTAL PHASES AND LEARNING CRITERIA 1. ESTATE AND TRUST PLANNING ESSENTIAL Familiarity with: the basic rules of taxation at death the purpose of trusts, both inter vivos and testamentary the effect of designation of beneficiaries in other instruments (e.g. life insurance policies, RRSPS, RRIFS, etc.) the Perpetuities Act the Accumulations Act the effects of domestic contracts on estate plans the anti-lapse provisions in Succession Law Reform Act claims of spouses/dependants under the Family Law Act and the Succession Law Reform Act the rule in Saunders v. Vautier the legal effects of incapacity the legal effects of undue influence/duress/suspicious circumstances the legal effects of intestacy the use and purpose of powers of attorney for property and personal care formalities of execution of wills, codicils and powers of attorney the purpose and effect of standard clauses in ordinary wills conduct client interviews to obtain the personal and financial information of the client and his or her family take effective notes to protect the plan/client/beneficiaries and the lawyer from claims of solicitor s negligence draft ordinary wills and powers of attorney explain to clients the technical will provisions ensure proper execution of the documents 1

2 INTERMEDIATE Familiarity with: trusts and other devices for dealing with non-standard situations, for example: spouses in second marriages with children from previous marriages beneficiaries with specific disabilities (e.g. mental impairment or creditor problems unique properties and assets allocation of assets between trusts all knowledge contained in the Basic Level Estate Administration Tax avoidance and minimization techniques taxation of trusts, both inter vivos and testamentary charitable gift planning the Ontario Disability Support Programme planning for succession of family businesses and farms planning for assets in foreign jurisdictions tax inspired use of testamentary trusts the use of multiple wills All of the skills contained in the Basic Level Draft inter vivos trust instruments Draft customized will provisions to deal with non-standard situations described above Deal with clients of doubtful capacity ADVANCED corporate reorganization techniques 2

3 Advanced knowledge of: all knowledge criteria contained in the Basic and Intermediate levels estate freezing procedures all skills contained in the basic and intermediate levels engage in co-operative planning with accountants, investment and insurance professionals develop a comprehensive plan prepare planning letters draft multiple wills and multiple trusts within wills draft insurance trusts 2. ESTATE AND TRUST ADMINISTRATION Category 2(a) ESSENTIAL Familiarity with: the flow of the administration of an estate of average complexity the distinction between lawyer s duties and the duties of the estate trustee the distinction between probatable and non-probatable assets the calculation of estate administration tax the benefits available under Canada Pension Plan legislation the possible benefits available under a company pension plan where deceased receiving a pension at time of death Rule 74 of the Rules of Civil Procedure in the context of a simple estate (e.g. one or two executors who are also the beneficiaries) the legal responsibilities of an estate trustee in the context of both trust and income tax legislation income tax consequences of death, including creation of new taxpayer, requirement for terminal return, deemed disposition of capital assets on death, deemed receipt of RRSP and RRIF proceeds, spousal rollover exemptions, possible requirement of trust information return, importance of tax clearance certificate the significance of advertising for creditors the significance of a release to estate trustee 3

4 the method of calculation of estate trustee s compensation in an estate requiring outright distribution and the significance of a compensation agreement incorporated by reference in the will the restrictions on estate trustees taking compensation without consent or court order the process of court passing of accounts Parts I (testate succession),ii (intestate succession) and V (support of dependants) of the Succession Law Reform Act and the regulation regarding the preferential share the Estates Act and the Estates Administration Act those portions of the Insurance Act relating to life insurance and the death of the life insured the Family Law Act insofar as it relates to death of a marriage partner review a will of average complexity with an estate trustee and explain the flow of the administration interview an estate trustee to secure details of assets and liabilities, and can prepare a statement of assets and liabilities determine whether or not an application for certificate of appointment will be required advise a client in a simple intestacy situation (e.g. spouse only heir and estate under $200,000; spouse and adult children only heirs estate over $200,000) determine if he/she is retained solely to perform solicitor s functions or is also retained to perform the duties of the estate trustee obtain proceeds of life insurance, an RRSP, a RRIF, deposit account prepare documents to sell or transfer stocks or bonds prepare and register a survivorship application for real estate jointly owned prepare and register the necessary documentation in the case of real estate or a mortgage on real estate owned in the name of the deceased alone transfer jointly owned assets such as deposit accounts, shares, stock portfolios into the name of the surviving joint owner obtain a certificate of appointment of estate trustee in a simple estate (e.g. one or two executors who are also the beneficiaries) negotiate with one or two financial institutions for the release of estate funds without obtaining a certificate of appointment of estate trustee and prepare the necessary documents to obtain such funds advise an estate trustee regarding advertising for creditors prepare or supervise the preparation of a simple statement of estate trustee s accounts no division of principal and interest outright distribution with no investment of estate funds except possibly short-term deposit term deposit receipts perhaps a small number of legacies calculate estate trustee s compensation in the preceding example prepare and submit releases to beneficiaries in estate involving outright distribution 4

5 supervise the preparation of and review on behalf of an estate trustee a simple terminal period return including OAS, CPP, investment income, employment income, simple foreign income, simple dividend income (no deemed dispositions or refund of premiums in an RRSP or RRIF) INTERMEDIATE the matters referenced in the preceding section of these criteria issues that may arise in the flow of an administration of an estate that is somewhat beyond average complexity, e.g. executor deceased or incapacitated non-resident executor alterations to a will allegation that a joint account is not a true joint account deceased s shares involved in a merger a takeover or other corporate re-organization) when it may be inappropriate for an estate trustee named in the will to apply for a grant, e.g. potential Family Law Act claim or some other potential conflict with the estate Rules 74 and 75 of the Rules of Civil Procedure the circumstances in which administration bonds can be dispensed with and working knowledge of the process for obtaining a court order dispensing with the filing of a bond income tax consequences on death, e.g. knows specifically the income in the terminal period return and the income in the trust information return distinction between non-depreciable and depreciable capital assets issue when RRSP or RRIF proceeds, or when specific capital assets such as land or stocks, pass to a named individual and not to residuary beneficiaries different types of clearance certificates that are available possibility of filing more than one terminal period return (e.g. rights or things return) calculating estate trustee s compensation in an estate involving an ongoing trust, i.e. care and management fee the process of court passing of accounts Parts I and II of the Succession Law Reform Act, the Estates Act, the Estates Administration Act and the Insurance Act relating to life insurance and the death of the life insured Ontario legislation relating to estates including 5

6 the Absentees Act the Accumulations Act the Charitable Gifts Act the Charities Accounting Act the Children s Law Reform Act the Trustee Act and the Variation of Trusts Act the skills referenced in the preceding section of these criteria review a will beyond average complexity with an estate trustee and explain the flow of the administration advise an estate trustee regarding the valuation of more complex assets, for example, income property, farm assets, jewellery, antiques advise a client in an intestacy situation of average complexity (e.g. estates where there may be any of a spouse, children, children of a deceased child, parents, brothers, sisters, nieces, nephews) obtain a certificate of appointment of estate trustee in an intestate situation such as in the preceding paragraph obtain an order dispensing with the filing of an administration bond obtain a certificate of appointment of estate trustee in a testate situation involving some degree of complexity, including: one of the estate trustees is deceased or incapacitated or does not want to apply notices to beneficiaries must be prepared and issued infant, incapacitated or absentee beneficiary one or more charitable beneficiaries advise an estate trustee in a situation involving ademption advise an estate trustee in a basic situation involving abatement of legacies prepare or supervise the preparation of a set of estate trustee s accounts beyond average complexity, for example: principal and interest are required to be divided estate funds are invested only in interest bearing securities assets are distributed in specie calculate the estate trustee s compensation in the preceding accounts prepare releases to beneficiaries other than simple releases supervise the preparation of and review on behalf of an estate trustee a terminal period return that may include income referenced in the basic skills plus: deemed dispositions of capital assets, refund of premiums of an RRSP or RRIF recapture of depreciation rights or things ; trust stub income; partnership stub income; business income 6

7 more complex foreign income ADVANCED the knowledge referenced in the preceding sections of these criteria Advanced knowledge of: issues that may arise the flow of an administration of an estate that is clearly beyond average complexity (e.g. challenge to the validity of the will on any grounds; Family Law Act claim; Part V Succession Law Reform Act claim; challenge to the appointment of an estate trustee; application to remove the estate trustee(s); complex assets such as agricultural production quota, mineral rights, timber rights, oil and gas rights) Rules 74 and 75 of the Rules of Civil Procedure income tax consequences on death and possesses a broad range of experience in income tax situations following death the process of court passing of accounts the calculation of compensation of estate trustees and an understanding of the issues that may arise in such calculations all Ontario legislation relating to estate administration including particularly the legislation referenced in the basic and intermediate sections of these criteria the skills referenced in the preceding sections of these criteria review a will of any degree of complexity and explain the flow of the administration advise an estate trustee regarding the valuation of a broad range of estate assets advise an estate trustee in any type of intestacy, including particularly an estate requiring reference to the table of consanguinity obtain any type of grant to estate trustee and demonstrate experience with more complex applications advise an estate trustee in situations involving ademption, abatement, insolvency of an estate prepare or supervise the preparation of any type of estate trustee s accounts including matters referenced in the basic and intermediate sections of these criteria plus: investment of estate funds in stocks and bonds and accounting for gains and losses in the disposition of such investments creation of separate sets of accounts for continuing trusts established under a will 7

8 calculate estate trustee s compensation in any type of estate prepare a complex release to estate trustee supervise the preparation of and review on behalf of an estate trustee any income tax return in respect of a deceased person or that person s estate advise an estate trustee with respect to essentially any issue that arises in the administration of an estate Category 2(b) ESSENTIAL the knowledge referenced in the basic section of Category 2(a) Familiarity with the common law relating to estate administration the duties of an estate trustee, the duties of a solicitor to an estate trustee and the duties of a solicitor to a beneficiary with respect to representing claimants against an estate, familiarity with the process of filing claims against an estate and working knowledge of relevant limitation periods (e.g. section 38 of the Trustee Act) undertake basic research of a legal issue of average complexity write a legal opinion on a simple estate administration issue with clarity (e.g. whether or not a document is a holograph will; OR what result obtains if a named beneficiary of a life insurance policy predeceases the deceased; OR how the residue of an estate is to be divided) draft a simple agreement on an estate administration issue with clarity INTERMEDIATE the matters referenced in the preceding section of these criteria the matters referenced in the Intermediate section of Category 2(a) 8

9 undertake research of a legal issue somewhat beyond average complexity write a legal opinion on an estate administration issue somewhat beyond average complexity (e.g. the application of Saunders v. Vautier with regard to a particular fact situation; OR an analysis of a claim under Part V of the Succession Law Reform Act; OR the classification of a bequest, i.e. general, specific, demonstrative) draft an agreement somewhat beyond average complexity in an estate administration issue (e.g. an agreement among beneficiaries regarding the collapsing of a trust) ADVANCED Advanced knowledge of: the matters referenced in the preceding sections of these criteria all matters referenced under all sections of Category 2(a) undertake research in any area of estate administration, beneficiaries rights, the duties and obligations of estate trustees, the rights of claimants against an estate write a legal opinion at any level of complexity in matters involving estate administration, beneficiaries rights, the duties and obligations of estate trustees and the rights of claimants against an estate advise a claimant against an estate regarding any aspect of the claim draft an agreement of any level of complexity regarding estate administration, including agreements to settle claims against an estate review at any level of complexity and advise an estate trustee or a beneficiary of any issue arising from such accounts or issue estate trustee s accounts a Family Law Act issue a Part V Succession Law Reform Act issue a constructive and/or resulting trust issue 3. ESTATE AND TRUST LITIGATION ESSENTIAL Familiarity with: 9

10 Rules 7, 9, 14, 31, 49, 74, 75, and 75.1 of the Rules of Civil Procedure, particularly, and the Rules of Civil Procedure respecting the conduct of litigation generally the Succession Law Reform Act the Estates Act the Family Law Act (Parts I, II, and III) the Substitute Decisions Act the Limitations Act the Trustee Act (sections 36, 37 and 60) the Variation of Trusts Act the Children s Law Reform Act (Parts I, II, and III) insolvency issues income tax issues draft notices of application, notices of motion, statements of claim and defence and related pleadings, affidavits in support, in less complex matters draft mediation briefs in less complex matters draft retainer/engagement letters, opinion letters reporting letters draft Minutes of Settlement, Releases and Consents conduct interlocutory proceedings and examinations for discovery in less complex matters draft management plans, guardianship plans and other proceedings concerning consent and capacity general advocacy and civil procedure skills INTERMEDIATE All of the knowledge contained in the Basic Level the substantive law respecting succession the substantive law respecting trusts advocacy in mediation and litigation how the Income Tax Act is taken into account in settlements and judgments, including spousal rollovers RRSP and RRIF rollovers 10

11 taxation of capital gains and losses principal residence life insurance income splitting and taxation of inter vivos and testamentary trusts the preliminary management and administration of estates and trusts, and conduct of or advising on, management and administration of ongoing estates and trusts for successive beneficiaries the conduct of mediation and litigation generally all procedures under the statutes described in the Basic Level all of the skills contained in the Basic Level as they relate to more complex matters ADVANCED The advanced estate litigator has all of the above skills and knowledge. In addition, he or she is an experienced litigator whose advocacy skills include not only superior litigations skills but also skill in alternative dispute resolution, and the ability to recognize the place of both, and consistently proceeds in the best interest of his or her client. The knowledge which supports the skills of the advanced estate and trust litigator is advanced knowledge of fiduciary and succession law. 11