Part 3: Digital and unique assets
This unique asset can include electronic or paper photographs and family albums. To avoid challenges or disagreements, stipulations can be included specifying who will keep the original photos; and who will pay the associated cost, or be responsible for, scanning and cataloguing the photos.
Intellectual property can include patents, trademarks, industrial designs, inventions, and copyright. To avoid any potential issues that can arise if provisions are not made and to safeguard your intellectual property, your lawyer can:
Require a transfer provision in the Will or underlying contract;
Draft the intended entitlement to royalties or fees in legacy documents;
Engage an IP professional to value the asset(s), to determine existing rights and ability of the estate to deal.
Art & Artifacts
Items in this category can include paintings, sculptures, cultural items, collectibles, and restricted items. If you own such items and wish to include them in your Will, consider the following:
Establishing ownership and certification;
Leaving clear instructions regarding the distribution of these assets;
Stating the name of the final decision maker in the event of a dispute;
Distinguishing whether the item is a personal effect or an investment item and determining equality;
Stating any associated costs i.e., administrative, insurance;
Ensuring a proper appraisal is completed if items will be gifted to charity;
Identifying your preferred brokers/dealers and including pertinent wording to direct future appraisals;
Adding stipulations to liquidate the collection slowly to avoid flooding the market;
Leaving provenance documentation and photos with the Will.
Cultural Icons & Prohibited Goods
Items in this category can include ivory, shrunken heads, animal pelts, archeological or paleontological items, etc. When dealing with cultural icons and prohibited goods, many challenges can arise including:
Restrictions on gifting, transfer, importation, transportation, or removal of the item;
Cultural, historical, or ecological sensitivity regarding the asset.
Restrictions may affect gifting this type of item to beneficiaries outside Canada and legislation may direct the seizure or return of the item to its cultural origin.
Gems, Coins & Collectibles
Unique assets in this category can include valuable gemstones, coins of value, stamps, buttons, etc. Your Will can include a statement regarding ownership of the assets; a valuation of the assets; insurance; and a catalogue of assets in the estate.
Listed personal property valued at over $1,000 may be subject to capital gains.
Living assets include domestic pets, exotic animals, and commercial animals, such as livestock and cattle. In the event of death, these assets require immediate and ongoing care. Health and safety concerns should also be addressed.
In the instance of commercial animals, a commercial value and a value of the commodities the animal provides also need to be determined. If you own a living asset, consider the following:
Leaving detailed instructions for the care of your animals in multiple locations that can be easily found;
Having provisions included in your Will or Power of Attorney documents that nominates an appropriate commercial agent or ensures a representative has the power to do so;
Determining if compensation will be made and in what form;
Having arrangements made for an experienced handler to provide their services.
Agricultural crops can include cash crops, such as wheat, corn, tobacco, hay and fruit. If you own agricultural crops, your Will can include the following:
An environmental clause in your Will or Power of Attorney;
An inclusion regarding insurance and ownership;
Provisions for a consultation with current business contacts so that pre-existing contractual commitments are met;
Specifications regarding continued stewardship of the farm including timely harvesting;
Nomination of an agent for all farm assets to determine valuation.
Genetic assets can include reproductive material such as, ova, sperm and embryos. In the occurrence of genetic assets, a number of legal challenges can arise. For example:
Is extraction post-death allowed?
Who can use the reproductive material, and on what terms?
Who, if anyone, can authorize its use?
How long can it be stored?
Can it be destroyed?
To whom does the resulting embryo belong?
Further challenges can include: rights after a donor’s death; the embryo’s right to inherit; and the representative’s right to dictate deceased/incapable’s procreation. To clarify these challenges, a Will can include the following:
Proper consent signed by the deceased under AHRA prior to death;
Written wishes and a direct disposition included in the documents and Power of Attorney;
Property claim preparation;
Outlined class gifts and intestate succession;
Discussion with surviving partner regarding intended use of reproductive material.
Firearms & Ammunition
The estate administrator generally has the same rights as the deceased to possess firearms and ammunition during the administration of the estate. The Firearms Act defines executor obligations and restrictions on possession.
Firearms are classed as non-restricted, restricted or prohibited, with the latter two requiring registration. Unregistered, restricted or prohibited firearms may be subject to seizure. Once a firearm is seized by police, it cannot be re-obtained.
The beneficiary must be qualified to take possession, meaning they must be at least 18 years or age and and must have passed the Canadian Firearms Safety Course and hold a valid Possession and Acquisition Licence (PAL).
In the event there is no eligible or willing beneficiary, the firearm must be sold, given away or surrendered to police. Be aware that there are restrictions on shipping and transporting firearms.
Proper storage is required by law and improper storage could potentially result in the seizure of the firearm. For safety, ammunition should also be stored separately from the firearm. Firearms should be treated as loaded weapons and only pointed in a safe direction. Each firearm should be trigger locked and transported in a case or secure container for restricted firearms.
Human remains can include the body and ashes of the deceased. When drafting the contents of your Will, consider the following:
Leaving specific instructions in multiple places that can be easily located, stating your preference for burial or disbursement, medical use of your remains, disposition and custody of the remains including splits;
Nominating a decision maker, to help eliminated any potential disputes.
To determine how unique assets can be best preserved and bequeathed, it is important to firstly identify all unique assets in the estate.
All clients and prospective clients should seek independent legal and tax advice regarding their particular legal, tax and estate planning needs. Please contact us for more information.