| Ademption | This is a legal principle in the law of Wills. If a person leaves a certain item in his Will to someone, but when he dies he no longer owns that item, the gift of it in the Will may fail and be said to have “adeemed”. Sometimes, if the wording of the Will is not precise, an heir may be able to claim money in lieu of the item. |
| Administrator | Basically the same as an Executor in most cases, but applies where there is no Will, and he or she must be appointed by the court. The newer term is “Estate Trustee without a Will”. |
| Attorney | A person who is appointed by a Power of Attorney to handle someone’s affairs is called the “attorney” acting under Power of Attorney - confusing, because in the U.S. they also call a lawyer an attorney. |
| Beneficiary | Basically the same thing as an heir; someone who gets a benefit under a Will, a Trust, or by operation of law. |
| Bequest | Generally any gift made by Will other than land. |
| Capital Gains Tax | This is a tax on profit received when certain types of property (capital property)are sold. There are many ins and outs with this tax. Upon a person’s death he is “deemed” by Canada to have sold his property , thus triggering Capital Gains tax. Similarly a gift of capital property (not cash) may trigger Capital Gains tax. Much of tax planning revolves around capital gains tax. |
| Child | Under the law of Ontario, the word “child’ when used in a Will has a specific meaning and generally does not include a stepchild; but does include a child born outside marriage. It does include a legally adopted child. |
| Common law | Refers to a marriage-like relationship of two persons, who may be a traditional or a same-sex couple, who have not gone through a legal form of marriage. Contrary to popular belief, common law couples do not have the same rights as married couples, as to sharing of property in Ontario, nor do they have any right to inherit from the other one on death |
| Devise | A devise is generally a gift of land contained in a Will. |
| Estate | |
| Administration Tax | See probate fees. |
| Executor | The person named either in a Will or by Court Order to carry out the terms of the Will. The executor may, or may not, be an heir. In the new terminology, also called “Estate Trustee with a Will” orsimply “Estate Trustee”. They are interchangeable terms. |
| Gift Tax | There is no true gift tax in Ontario. It has been replaced by the Capital Gains tax, which may mean there will be tax on certain gifts of capital property. Money however is not capital property in this definition and so can be given away free of tax at any time in Ontario. There is no limit on gifts of money free of tax. |
| Heir | One who inherits. |
| Inheritance Tax | Tax payable either by an estate of a deceased person, or, by an heir, when they inherit. There is no true inheritance tax in Ontario, instead, we have the Capital Gains tax on death. In some jurisdictions, however, there may be an inheritance tax to be paid . In France, for example, a step child who inherits from someone in Ontario will have to pay as much as 60% inheritance tax to the government of France upon receiving the inheritance. |
| Lapse | In the law of Wills, if a person leaves an inheritance to someone who dies before them or if for some other reason the gift cannot take effect, it may be said to have “lapsed” and it will be treated as a void gift. There are however specific exceptions to the rule in Ontario law, that we will advise you about, if relevant to your case. |
| Last Will & Testiment | This is the same thing as simply a Will. |
| Legacy | Generally any gift made by Will other than land. The terms bequest and legacy are generally interchangeable. |
| Living Will | This is not truly a Will as such. It is an expression of a person’s wishes for treatment while they are alive - normally dealing with whether they would want to be kept alive by artificial means; also known as an “advance care directive”. |
| Power of Attorney for Personal Care | A Power of Attorney that names someone to carry out your personal care decisions such as medical, treatment, residence and so on. You can name the same person in both types of power of attorney, or different people. |
| Power of Attorney for Property | A Power of Attorney that deals with one’s worldly goods - so “property” in the broad sense of the word. It may be general, for all property, or limited to just certain specified assets. It may specify that it remains valid even after one has lost mental capacity. |
| Power of Attorney | A formal document that gives power to someone else to handle your financial affairs or your personal care. Each Province has its own laws governing the making of a Power of Attorney. |
| Probate | People speak of getting “probate” of a Will. This is a form of court order that we will obtain for you. It does two things; it confirms that the will is the last, valid will of the deceased, and confirms that you, the Executor, are duly appointed by law to carry out the terms of the will. The new terminology for probate in Ontario is “Certificate of Appointment of Estate Trustee with a Will” . They are the same thing. If there is no Will it is called a “Certificate of Appointment of Estate Trustee without a Will |
| Probate Fees | The court will charge a fee upon filing for probate of a Will. Now also known as the “Estate Administration Tax”, it is a sliding scale of fees that depends on the value of the assets in the Will |
| Property | Normally in Ontario law, this means more than just land, it includes all goods that a person owns, so, “property” in the broad sense of the word. |
| Spouse | In Ontario the definition of spouse now includes same-sex persons. |
| Will | A formal document that sets out the disposition of goods and rights upon death. Ontario law requires that it be in writing and meet certain legal requirements as to form and method of signing, in order to be valid. |
