 |
| |
|
| |
| Estate Litigation |
Because Estate Law is so complex and the number of challenges to wills is rising exponentially, it is crucial to work with a lawyer who specializes in this area.
Romeo D’Ambrosio has extensive litigation experience to handle estate disputes, and has appeared at all levels of Ontario trial courts and the Court of Appeal. Mr. D’Ambrosio will explain the litigation process to you in detail, lay out the time frames, and make sure you have realistic expectations. He will work diligently to protect your rights and defend your claim.
Mr. D’Ambrosio strives to get your dispute resolved as soon as possible because it can be extremely expensive--not only financially, but emotionally--to everyone concerned. You are often already involved in the lives of those with whom you are quarreling. You are going to see them at future family events or your children may be good friends. Mr. D’Ambrosio works hard to repair that relationship so you can move on for the sake of your family.
In the past, those who make claims against a will automatically had their court costs paid from the estate. Today the rules have changed and this is not an automatic outcome. The court can rule that the person challenging the will must pay his or her own costs but those of the defendant as well. Fees can be in the tens of thousands of dollars if a case goes to trial and even more. Romeo D’Ambrosio has the experience and expertise to help you through this challenging process and bring your case to a positive outcome.
In Toronto, all estate disputes must be mediated. Mediation works to settle cases before they go to court, saving those involved both time and money. Mr. D’Ambrosio has acted as counsel at many mediations.
If you are considering a challenge to a will or are facing a will challenge, let Romeo D’Ambrosio help you with his specialized knowledge, experience, and clear, plain language advice. |
| Top |
| Estate Planning |
| Romeo D’Ambrosio believes in taking time with his clients to help them plan their estates and cut through the legal language that can sometimes be confusing and stressful. His years of expertise and detailed knowledge of Estate Law give him the skills to suggest several options to benefit his clients and to relieve tax burdens from their beneficiaries. |
| |
| A good estate plan has several key components that need to be checked regularly to ensure that changes are made when needed. An estate plan should include an up-to-date Will, up-to-date Power of Attorney for Property and a Power of Attorney for Personal Care. Registered Retirement Savings Plans, Policies for life insurance and disability insurance should also be reviewed to ensure that they are adequate for your family's needs. In some cases, estate plans will also use formal trusts to protect assets from creditors and to avoid probate fees. |
| |
| Mr. D’Ambrosio has a network of experts whose knowledge he can draw on to help prepare your estate plan. He will team with your accountant, financial planner and insurance agent to create the best plan for your needs. He also has access to tax experts and American lawyers to help with complex tax issues or cross-border issues. |
| |
| Let Mr. D’Ambrosio's expertise and commitment to excellence help you plan your estate and be assured that your wishes will be honoured. |
| Top |
| Estate Administration |
| A personal representative of an estate has the obligation to carry out the terms of the deceased's will or to administer and distribute the deceased's estate in accordance with statutory requirements in the event of an intestacy. A personal representative must take steps as soon as is possible following the death of the person whose estate is the subject of the administration to: |
| a |
arrange for the burial or other disposition of the remains of the deceased. |
| b |
ascertain all assets and liabilities of the deceased including advertising for creditors where appropriate; |
c
|
apply to the Superior Court of Justice, where necessary, for a Certificate of Appointment of Estate Trustee with a Will or a Certificate of Appointment of Estate Trustee without a Will. |
| d |
realize the estate assets; |
| e |
determine the lawful distribution of the estate including ascertaining heirs at law. |
| f |
file all necessary income tax returns and arrange for the satisfaction of all liabilities including income tax liabilities. |
| g |
respond to any challenges or claims against the estate by beneficiaries or third parties. |
h
|
maintain and provide to the beneficiaries and/or heirs estate accounts reflecting all of the receipts and disbursements made during the course of the administration of the estate. |
|
| |
| Generally, a personal representative will meet with a solicitor shortly after the death of the deceased to review his or her duties. The administration of the estate includes some solicitor's work for which the estate trustee may be properly reimbursed out of the estate. This work may include preparing an application for a Certificate of Appointment of Estate Trustee; preparing transmission applications necessary for the sale of property, providing advice to the estate trustee with respect to the estate trustee's duties. The legal fees paid by a personal representative to a solicitor are subject to review by the court upon an audit of the estate accounts. |
| |
| Mr. D’Ambrosio has extensive experience in acting for personal representatives, both individuals and institutional trustees, and providing legal services in the administration of an estate. |
| Top |
| Mental Competency Application |
In Ontario, several stipulate who may make decisions for incapable persons, and the manner in which decisions are to be made respecting the personal care and property of individuals who are incapable of managing their own personal care and/or property. These statutes include the Substitute Decisions Act; the Health Care Consent Act; and the Powers of Attorney Act. An individual may plan for his or her own capacity by executing a power of attorney for personal care and a continuing power of attorney for property in favour of his or her own personal choice of substitute decision maker. The document must be prepared in accordance with the statutory requirements set out in the Substitute Decisions Act.
Where an individual has not made a grant of power of attorney or, if the power of attorney is found deficient or the attorney is unable or unwilling to act, an application may be made to the court for the appointment of a guardian of the person and guardian of property for a mentally incapable person. In certain instances the Public Guardian and Trustee may become the statutory guardian of an incapable person's property and application may be made by an individual to replace the Public Guardian and Trustee as statutory guardian of property. |
| Top |
| Applications under the Substitute Decisions Act |
Guardianship applications are made to the Superior Court of Justice. Applications are supported by detailed affidavit evidence setting out the reason that the application for guardianship is being sought, including evidence as to the incapacity of the person for whom guardianship is sought and a detailed plan for the care of the individual's person or property. The plan for the care of the incapable person's property is called a "management plan". The plan for making personal care decisions is called the "guardianship plan". Management plans and guardianship plans must be submitted to the Public Guardian and Trustee for her approval. The management and guardianship plan forms part of the guardianship order. Medical evidence, while not required by statute, is a practical necessity on any application to the court for the appointment of a guardian. Capacity assessments of the individual for whom guardianship is sought are frequently obtained from a designated capacity assessor. Where an application is made using the summary proceedings, the assessment of a designated capacity assessor must be included with the application materials.
A court will only appoint a guardian where the court is satisfied that the person is incapable of managing his or her property or making personal care decisions and, as a result of being incapable, the person requires decisions be made on that person's behalf by a person authorized to do so. If there is any alternative to the appointment of a guardian that is less restrictive to that person's decision making rights, the court is directed by legislation to adopt the less restrictive means. |
| Top |
| Disputes regarding Powers of Attorney |
A person, while capable, may grant and revoke powers of attorney freely. However, the Substitute Decisions Act stipulates what a person giving a power of attorney must comprehend in order to have the requisite capacity to give a power of attorney. At times there are disputes between attorneys under powers of attorney given at different times during the grantor's lifetime as to which power of attorney is valid. Similarly, a person may revoke a power of attorney where he or she does not agree with decisions that are being made in respect of his or her person and property by the named attorney. The attorney in this instance may take the position that the grantor lacks capacity to revoke the power of attorney.
Where there are multiple attorneys named there may be disputes as to the management of property or personal care decisions. Attorneys may be called upon to account for their management of property by the grantor, the Public Guardian and Trustee or by any other person with leave of the court. |
| Top |
| |
