Estates & Wills & Trusts

Estate planning for prisoners and their families

By AdvocateDaily.com Staff

For families with a loved one who is in prison, routine financial issues such as making a will, keeping a family business afloat and supporting children are fraught with complications, Toronto estates and trusts lawyer Ian Hull tells AdvocateDaily.com.

In the midst of the crisis of a trial and potential incarceration, families often fail to do necessary planning because they're overwhelmed, says Hull, co-founding partner with Hull & Hull LLP, who has deep experience helping clients navigate complex challenges involving their estates.

For example, it is quite common for prisoners to have a parent pass away while they are incarcerated. The parent may want to leave their house or money to help their son get back on his feet after being released, but inmates are unable to occupy a home or manage a bank account.

“They can’t close their hand on the money,” Hull says.

The national list of personal property for inmates allows prisoners to keep a maximum of $1,500 of personal effects with them, Hull says. That includes jewelry, musical instruments and sporting equipment. They are not permitted to hold cash.

That is where an experienced estates lawyer can help — by setting up a trust on the prisoner’s behalf so that the money is waiting for him when he gets out — by appointing a property manager to take care of the house, and the myriad other financial issues that can come up.

With the prison population aging along with the general population, inmates often have businesses or other property that must be cared for while they are incarcerated, Hull says.

“’Mostly it’s a situation where you just get yourself in the hands of a good lawyer looking after your affairs,” he says.

As well as setting up trusts or powers of attorney, a good estates lawyer can help craft creative solutions, Hull says.

One of his recent clients, who had to spend years in pretrial custody while facing a manslaughter charge, owned a lumber business that needed to be kept running. Hull put together a team to keep the company going, which was not easy because lumber is a high cash flow operation.

“There was a great deal of risk because if he was convicted he wasn’t going to be running anything,” he says, noting that the man was ultimately acquitted and was able to return to his business.

Another complex case involved an incarcerated man whose elderly mother had been making support payments for his six-year-old child, but she became incapable of conducting her financial affairs, Hull says.

“There weren’t any arrangements made in advance, and the child’s aunt, who was physically caring for the child, needed money desperately,” he says.

Hull had to bring a court application for the child support payments to be continued and, as part of that, papers had to be served on his client in prison.

“When you have someone in an incarcerated situation you have to think about whether they have dependents, and what will happen to them should the cash flow dry up,” he advises. “When you have a civil matter involving someone in prison, you get big procedural headaches.”

Such cases are not the norm for Hull, who handles about one estate case per year involving a person who is in prison. He also helps inmates write their own wills as well as facilitates their inheritances.

He stresses the importance of seeing an estate lawyer as well as a defence lawyer for people in the criminal justice system. Most don’t realize that going to prison is a major change in circumstances from a planning point of view, just like having a child or getting married, Hull says. “They simply don’t plan, and that’s a mistake.”

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