League and Williams Lawyers

Category: Wills and Estates

Inheriting Debt: Estates That Can’t Afford All of the Debt

Sometimes, a person’s estate isn’t large enough to pay all of the debt they owe to creditors from their lifetime. This is called an insolvent estate. When this happens, loved ones and beneficiaries are often worried that they will be burdened with the deceased’s debt. Beneficiaries of an insolvent estate are not likely to receive their inheritance. However, they will not “inherit” the deceased’s debt either. Barring unusual circumstances, the estate is responsible with paying the deceased’s creditors. No one else will be required to pay unless they were expected to before the testator’s death. If an estate can’t afford all of its payments, certain creditors won’t be paid in full.

Debts Owed, But Not Inherited

A misconception that people often have is that debts simply disappear upon one’s death. This is not the case. People, and their estates, are always required to pay off outstanding debts before gifts can begin being distributed to beneficiaries. In a way, the beneficiaries are indirectly ‘paying’ these debts, as their inheritance is being used to pay them. It’s important to understand that beneficiaries are never to pay debts after they’ve received an inheritance. The executor must ensure all estate creditors have been paid before distributing gifts.

When Debt is “Inherited”

You can only ‘inherit’ debt from a loved one when it is jointly owned between yourself and the deceased. For example, if you and your spouse had a joint loan, you must repay it even if your spouse dies before the balance is cleared.

Avoiding Inherited Debt for Your Loved Ones

Well, the obvious solution to preventing loved ones from inheriting debt is to not make any joint debt agreements. While this solution might be painfully obvious, it’s not always an option for some people. We would recommend not entering into joint debt agreements when you’re reaching an older age as you’re at a higher risk of passing away before the debt is repaid. In the case that you have joint debt with someone, when one of the testators passes away, the surviving person is responsible for paying the balance.

Any earnings received from a life insurance policy are tax-free.

Depending on the debt agreement, some life insurance policies will cover your loved ones in the unfortunate case that you pass away before the debt is paid. There are different types of life insurance and can provide further benefits in terms of estate planning. For more information, read our blog on life insurance.

Executors Dealing with Insolvent Estates

The estate executor will be responsible for paying any debts owed on behalf of the estate, using funds from the estate assets. When the estate is insolvent, it can be complex to figure out which creditors have priority to be paid. Just like the beneficiaries of the will, the estate executor is not personally liable to pay debts that the estate can’t afford. The only time an executor is liable is when they distribute inheritances to beneficiaries before paying creditors. For more information, read our blog on the debt repayment order of priority.

In the end, debt is never passed down through the will if the estate is unable to pay for the debts owed. Beneficiaries of a will never have to pay anything to receive their inheritance and won’t have to pay any estate taxes or debts after receiving their inheritance. The only case where debt is “inherited,” is when the debt was originally jointly owed. When one of the joint debt owners passes away, the debt is still required to be paid by the surviving person.

If you’re unsure how your debts will make an impact on your estate, contact an experienced estate lawyer today. We can help you to understand the implications your debts might have on your estate and the inheritances you wish to give to loved ones.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

February 5, 2021
Role of a Beneficiary: What Can and Should a Beneficiary Do?

If you’ve recently been named as a beneficiary of a will for the first time in your life, you’re probably wondering what you have to do to receive your inheritance. In some cases, beneficiaries don’t even know that they are a beneficiary in the deceased’s will until after the will-writer has passed away. Either way, a beneficiary of a will has a minimal role in the estate administration process. In most cases, the beneficiary can sit back and wait patiently for their inheritance to arrive.

The executor(s) of the will are the people responsible for administering the estate. Once they have finished the administration process, they are able to distribute the estate assets to the beneficiaries as described in the will. Beneficiaries don’t have the contribute to the administration process, and they do not have to pay any money to the executor or any one else to receive their inheritance from the estate. There are a number of inheritance scams where fraudulent people or businesses try to trick people into paying a fee to receive an inheritance that doesn’t actually exist. To reiterate, inheritances never have a fee attached to them and any gift received as part of a will is not subject to income tax.

Unfortunately, sometimes the executor of the will fails to fulfill their duties to the detriment of the beneficiaries. When this happens, the role of the beneficiary expands and beneficiaries are able to take action to ensure that they receive their inheritance in a fair and timely manner.

When Beneficiary Action is Required

While beneficiaries have a minimal role to play during estate administration, this doesn’t mean that they are left helpless at the hands of an incompetent executor. When an executor is failing to administer the estate or not properly meeting the responsibilities and duties of an executor, beneficiaries can and should take action. Depending on the executor’s actions or lack thereof, a beneficiary has different legal remedies available to exercise.

Slow Executors

Beneficiaries never have to pay money to receive an inheritance.

Executors typically have a 1-year period from the date of the will-writer’s death to finish the entire estate administration process. This is called the executor’s year. Most motions started by a beneficiary during this time will not be heard by the courts. This is a common law principle so remember that there are exceptions to this rule which can arise.

When an executor fails to administer the estate within the executor’s year, beneficiaries can begin to take action to speed up the process. There are various different types of delays – both reasonable and unreasonable. When the administration is unreasonably delayed, beneficiaries will be able to take legal action. For more information, read our blog on what can be done about slow executors.

In the most extreme scenarios, executors can be removed by the courts. This is a last resort option for courts as it is contrary to the final requests of the will-writer. For more information, read our blog on removing an executor.

Inaccurate Accounts

Once a will’s executor has finished administering the estate, they must send a detailed account of everything that went into and out of the estate. This is to ensure that the executor didn’t forget about any assets or commit any fraudulent behaviour. Beneficiaries should be extremely careful to look through the details of the account, ensuring that there are no mistakes or errors. If a beneficiary notices a discrepancy, they can begin to take action against the executor.

If a beneficiary notices an estate asset has gone missing, they can force the executor to act, proving to the courts everything that has gone into and out of the estate. For more information, read our blog on forcing an executor to act.

In the more extreme cases, a beneficiary is able to sue the executor on behalf of the estate. Since the beneficiary is not actually in possession of or the legal owner of any piece of the estate yet, they must sue on behalf of the estate. For more information, read our blog on beneficiaries suing on behalf of an estate.

If a beneficiary believes a debt belonging to the estate should be paid that was not, they can file for the courts to order the executor to pay the debt. The beneficiary will not be held liable if they are given their share of the estate and a debt is later realized to have not been paid by the executor. For more information, read our blog on the rights of beneficiaries in terms of debt.

If you’re a beneficiary of a will and are unsure about what you should and shouldn’t do in your situation, contact an experienced estate lawyer today. We will ensure that you receive the inheritance that you’re entitled to.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

February 3, 2021
Estate Litigation: Drafting Lawyer’s Disclosure
Sometimes, a lawyer’s file containing notes and documents written during the testator’s will-writing process can be helpful in resolving litigation. However, lawyers aren’t always able to release this information. Lawyers have a certain degree of confidentiality they must adhere to. They owe this duty to the testator even after they have passed away. According to chapter 3 of the Code of Professional Conduct for British Columbia (CPC),

“A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.”

Lawyers and Confidentiality Release

There are few circumstances where a lawyer is able or required to release information on a client from their files. Further, the CPC outlines that while a lawyer must keep strict confidence on their client’s affairs, they can release such information when:
1. Expressly or implicitly authorized by the client;
2. Required by law or a court to do so;
3. Required to deliver the information to the Law Society, or
4. Otherwise permitted by the Code.
A lawyer always owes a duty of confidentiality to all of their clients.

Basically, a lawyer can only release all their information on a client if authorized by the client or the courts. People are sometimes confused, wondering why this information is confidential. However, it’s important that client information be confidential in order for a lawyer to give effective advice and clearly communicate with their clients. This ensures that lawyers understand the entire situation to the fullest possible extent and can give the best advice possible.

Client/Executor Authorization

Usually, estate litigation cases arise after the will-writer has passed. In this case, the client obviously can’t authorize the release of the information in the lawyer’s file. The executor of the will is able to authorize the release of information. Executors are appointed to administer the estate, and must act in the best interests of the beneficiaries. In order for the executor to waive confidentiality, they must sign off, agreeing for the lawyer’s file to be released. The executor has the option to allow this or not.

When the will-writer is still alive, they can allow the will drafting lawyer to release information if they choose. The executor will not be given this ability until after the testator has deceased.

Court Authorization

In some cases, the courts have to order the authorization for the lawyer to release the will drafting information. An example of when this could arise in an estate litigation case is when there is question of the validity of a will. Since the validity is in question, the executor of the will might not even be a valid executor and hence cannot authorize the release. Other cases where this can arise include when the courts believe that the release of the file is essential to a case, however, the executor is refusing to authorize the release. The courts are given the final say and can exercise this power when it appears to be necessary to resolve a case.

If you believe that the release of a drafting lawyer’s file could help with your estate litigation case, contact an experienced estate lawyer today. We can ensure that you’re properly represented and get the information you’re entitled to.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
February 2, 2021
Probate, or Proof in Solemn Form?
Probating a will and proving a will in solemn form are two different legal concepts which can be easily confused. Probating a will, known as proving a will in common form, proves your will is real and properly prepared. Conversely, proving a will in solemn form affirms the validity of a will for the courts.

Why Probate Your Will?

In BC, you must probate a will if the estate value is higher than $25,000. This excludes assets held in joint tenancy or with designated beneficiaries. The executor uses the grant of probate to prove to banks that they have authority over the estate. This helps to guarantee that valuable assets are not improperly handled after the owner passes away.

The Process of Probating a Will

To obtain a grant of probate, the executor applies to the court. They must file a requisition and evidence in support of the application including:
- A certificate of wills notice search,
- An affidavit of the executor attaching the original will and codicils to the will along with any memoranda that are referred to in the will,
- A detailed statement of the deceased’s assets and liabilities,
- The plan for distribution contained in the will,
- An affidavit advising the court of the persons who inherit under the will, those would have inherited had there not been a will and those entitled to claim against the will under the Wills, Estates and Succession Act, and;
- An affidavit confirming that those who inherit, would have inherited had there not been a will and those entitled to claim against the will have been served with the notice of probate application.
In some circumstances, other affidavits may also be needed – and it may also be necessary to inform the British Columbia Public Guardian and Trustee of the application for probate. In addition to probate, a person may also need to apply for letters of administration from the court. A full list of the probate forms is available at the Province of British Columbia’s website.

You should expect to pay approximately 1.4% of the total estate’s value, plus a $200 court filing fee for probate. If you need a grant of probate even though your assets are valued below $25,000, the fees will be waived.

Why Prove a Will in Solemn Form?

It’s not common that a will needs to be proven in solemn form.

A proof in solemn form is conducted when the courts need conclusive evidence as to whether a will is valid, and is the final will of the testator. This is usually only necessary when there is controversy over the validity of a will. In this case, the court can give the executor the burden of proving the will in solemn form. This will ultimately end the dispute and settle if the will is the valid, last will of the testator. The most common instances where proof in solemn form is required are when:
1. A beneficiary is taking action on the validity of a will. The executor must prove in solemn form that the will is valid; or,
2. Someone takes action to revoke a grant of probate after a proof in common form. The executor must prove in solemn form that the grant of probate and will are valid.
The Process of Proving a Will in Solemn Form

Proof in solemn form is an extensive process. All interested parties are notified of the process. A case in Vancouver from 2009 demonstrates when and why the courts would require a proof in solemn form.

The case of Romans Estate v. Tassone (2009) demonstrates an instance where an executor is ordered to prove a will in solemn form. Romans gave his house to Tassone, but later signed in his will that a third party, Cardinal, be given the estate home. After Romans passed away, Cardinal sued Tassone, claiming that Romans did not have the capacity to give the house to him and that he used undue influence to receive the house. The judge said that Cardinal must prove the will in solemn form in order to have grounds to sue Tassone; if the will was not conclusively valid, there was no reason to begin the trial. If this will was successfully proven in solemn form, then Cardinal would be awarded the estate because this would mean the will was a valid, final will.

In Romans’ estate trial, the will’s validity was in question, a beneficiary took action, and as a result, a proof in solemn form was required.

If you need legal advice on how to probate a will or how to prepare a proof in solemn form, contact an experienced estate lawyer who will ensure that estates are distributed as intended by the will-writer.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
January 28, 2021
Moving to a Different Province: Do You Need to Write a New Will?.

Relocating to a new country means adapting to its estate laws. Your old will may not be valid there. It might need significant updates, or even a complete rewrite to ensure its validity in your new home. But, what about when you move to a different province in Canada? Even though all provinces are subject to federal Canadian law, estate laws can vary greatly between provinces. If you are moving provinces or have since you last updated your will, it may be time for a new one.

Every province and territory in Canada has their own separate estate laws. If you prepare your will in Ontario, but later move to British Columbia, the will from Ontario is to be used in BC when you die (assuming a new one isn’t written). Even if your will was valid in Ontario, if your dispositions don’t comply with the Wills, Estates, and Succession Act (WESA), you risk having your will varied or even found invalid after your death. Often when this happens, the will-writer has no idea that their will is invalid in their new province.

What to Do When Moving Provinces

A marriage revokes any pre-existing wills in Ontario, but not in BC.

If you’re moving to a different province, you should have your will reviewed by an experienced estate lawyer. An estate lawyer can go through your will, identifying provisions that might have been valid in your old province of residence, but would be invalid in the new one. Keep in mind that it’s extremely unlikely that you will have to write an entirely new will. Usually, only a few changes will be required, if any. However, it is still essential to ensure that your existing will is valid in your new province of residence. Otherwise, your estate may not be distributed according to your wishes if estate litigation arises.

Another issue to consider after moving to a new province is who the executor of your will is. If your executor does not live near your residence, it can create difficulties for them during the process of administering your estate. If you moved to BC from Québec, it will be extremely difficult for an executor in Québec to administer your estate across the country in BC. This also means that it may take longer for the beneficiaries of your estate to receive their inheritance. Estate administration encompasses a handful of different tasks, some of which require the executor to be physically present. In general, it’s usually recommended that an estate’s executor is someone who lives in the same place as the will-writer. Because of this, you should always consider whether or not your executor should be changed when you move to a new province.

Moving, but Not Permanently

An important concept to understand in estate law is that of a domicile – the place where your permanent residence is. Your domicile determines which country’s or province’s estate laws will be applied to your will. Throughout this blog, when we mentioned “moving to another province” we were referring to someone who is moving, with the intention of making the new province their permanent residence. This means that the old province’s estate laws will be irrelevant to the administration of the individual’s estate. When you pass away, your domicile is where your will is to be executed.

For example, if someone moves to BC, with the intention of staying there for only 3 years before moving back to Alberta, they wouldn’t need to update their will. This individual’s domicile will always be Alberta, even if they are living outside of Alberta temporarily. Regardless of where they die, their will is to be executed in Alberta. For more information, read our blog post on domicile.

If you’re planning to move to another province, contact an experienced estate lawyer to review your pre-existing will. In some cases, nothing will need to be changed; however, you should always have a lawyer in your new province of residence review the documents to be sure that your estate will be distributed exactly as you’re intending. If your will is invalid and you die intestate, the courts will determine how your estate is to be distributed.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

January 22, 2021
The Careless Estate: Beneficiaries Suing on Behalf of the Estate
Executors have several responsibilities when administering an estate. This includes accounting for all assets, debts, and money exchanges coming into and out of the estate. When the executor is ready to distribute to beneficiaries, they are typically required to provide a copy of these accounts. Depending on the value and complexity of the estate, this can be an extremely detailed, complex document. In the case of a careless executor, beneficiaries might raise questions over where certain assets and accounts went during administration.

Sometimes, an inheritance can change a beneficiary’s life, and it can be stressful waiting when the executor is not managing assets as expected. Unfortunately, some executors have attempted theft by not accounting for assets in their report to the beneficiaries. It’s important that beneficiaries proceed with caution in agreeing to the accounting details.

If a beneficiary believes the final accounts are not proper, there are two options available to them:
1. Forcing the executor to act; or,
2. Suing on behalf of the estate.
This blog will talk how about how beneficiaries can sue on behalf of the estate.

Suing on Behalf of the Estate

While beneficiaries might feel helpless during estate administration, they do have rights to ensure the executor is managing administration properly. Most importantly, beneficiaries are entitled to the accounting information during the estate administration process. An executor is required to give this information when requested by a beneficiary. Beneficiaries can keep a close eye on the estate through the accounting information if they’re suspicious of the executor’s actions.

When an asset has gone missing, it’s usually up to the beneficiaries to report it.

If a beneficiary believes an estate asset has been intentionally misrepresented, they can sue on behalf of the estate.

Suing Under WESA

According to the Wills, Estates and Succession Act, beneficiaries are allowed to sue on behalf of an estate in BC:
- To recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or
- To obtain damages for breach of a right, duty or obligation owed to the deceased person.
Usually, suing an executor on behalf the estate will result in the executor being ordered to detail where the missing asset is. It may result in their removal as the executor and if they are entitled to an inheritance, can result in their removal as a beneficiary all together. In extreme cases where the executor was behaving inappropriately, they can be ordered to compensate the beneficiaries by paying from their own assets.

While it may seem like the only option, most matters like this can be resolved without help from the courts. Having an outside party, like a lawyer, speak with the executor can solve most estate problems in a much faster and easier fashion.

Beneficiaries may feel as if they do not have a lot of control over the estate administration process; however, there are options available to ensure the process is done correctly. If you’re a beneficiary that thinks an asset has been misrepresented, contact an experienced estate lawyer today to begin solving this problem sooner rather than later.

Have a question about this topic or a different legal topic? Contact us for a consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
January 20, 2021
Adoption and Inheritance: What You Need To Know

While BC has relatively generous estate laws for children who have been unfairly disinherited, estate planning or litigation can become complicated for families who have either adopted children or given children up for adoption. When there are no valid reasons to disinherit, by law, parents and spouses must provide adequate provisions for the life and maintenance of the lives of their children and spouse in their wills. In blended families and families with adopted children, questions and complications can arise over the definition of who a “child” really is.

Rights of Adopted Children & Adopting Parents

In BC, a legally adopted child is treated the same as a biological child would be for estate purposes. A will provision making a gift to “my children” would, by default, include any adopted children. In some cases, children are taken care of by friends or family members of their parents, while never being lawfully adopted. There is no concept of common law adoption like there is for common law spouses; no matter how long someone is caring for a child, they are never their lawful parent unless a legal adoption takes place. A child is not entitled to a caretaker’s estate even if the caretaker was with them for the entirety of their childhood.

When an adopted child is disinherited from an adoptive parent’s will, they have the same right as a natural child to claim to vary the will. If there was an invalid reason for disinheriting the child, the will can be modified to give the adopted child their fair entitlement to the estate. This procedure will be exactly the same as for a natural born child who was never adopted, who challenges a biological parent’s unfair will.

Rights of Adopted Children & Biological Parents

Parents who have given a child up for adoption can still leave them an inheritance if they specify so in their will.

As described in section 3 of the Wills, Estates and Succession Act (WESA), when a child is adopted they are no longer entitled to the estate of their biological parent, unless otherwise specified in the will. Once a child has been adopted by another family, that child is no longer considered their biological parent’s child for estate purposes. A will provision making a gift to “my children” would not naturally include any children who have been legally adopted by someone else.

In the case of Boer v. Mikaloff (2017), a child who was given up for adoption was re-united with his birth mother late in her life. Before her death, she named her biological son as a beneficiary in her will, giving him part of her estate. The son was looking to make a will variation claim, arguing that he should be considered to have standing in the claim even though he was no longer legally her child because he had been made a beneficiary. The question the courts looked to answer was, “does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under section 60 of the Wills, Estate and Succession Act?” In conclusion, the courts ruled that the child was a child of the adopted parent now and being named as a beneficiary of his biological mother’s will did not change this. The judge ruled that for estate purposes, no, an adopted child is not a lawful child of the biological parent. The will was not varied and the son was given the specified amount in his biological mother’s will, nothing more.

This case is consistent with the facts of the Wills Estates and Succession Act; however, it can be troubling for adopted children who develop loving relationships with their biological parents. For more information on this case, read our blog and watch our video blog on adopted children and their biological parent’s estate.

If you’re an adopted child or parent of an adopted child who is unsure of how these laws impact your situation, contact an experienced estate lawyer today.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

January 11, 2021
When a deceased’s assets go missing: what can be done?
The executor of an estate has several responsibilities. These include accounting for all assets, debts, and funds entering or leaving the estate. When the executor is ready to distribute the estate to the beneficiaries, they are required under BC’s Trustee Act to provide a comprehensive account of everything that went into and out of the estate during administration. This account information must include:
1. What the original estate was;
2. All the assets received by the estate; and
3. All the assets remaining to be distributed.
Beneficiaries are entitled to this information and have a legal right to request this information at any time during the estate administration process.

Assets Missing from the Estate

If an executor cannot account for an asset, they can, in some cases, be ordered to pay for this out-of-pocket.

An estate inheritance can sometimes significantly change a beneficiary’s life. It can be very stressful when the executor isn’t managing the estate as expected. Unfortunately, some executors have attempted fraud or theft by taking parts of the estate and not accounting for them. In other cases, estate assets simply go missing because of the executor’s inattention to detail or carelessness. Beneficiaries should proceed cautiously when agreeing to the accounting details, ensuring all assets are properly accounted for. While they might feel powerless during the estate administration, beneficiaries do have rights to protect their interests. If a beneficiary is suspicious of the accounts or believes an asset is missing, they should take action. They can ask the executor to prove the accounts are correct in court.

Passing of Accounts – Proving the Account’s Accuracy

When a beneficiary disagrees with the accounts provided by the executor, they can formally challenge them. This process is called a passing of accounts. A passing of accounts is a court hearing where the courts review the account to determine if the challenge is reasonable or not. The courts will consider a broad range of detailed evidence to determine if anything “went missing” or was miscalculated. In most cases, the courts will need to review the entire account and all the transactions involved. If the executor was not diligent with their record keeping throughout the estate administration process making sure to track all assets and transactions, it can be difficult to prove the account is accurate.

As described in the case of the Estate of Fannie Cleverley (2000), the purpose of the passing of accounts is to “determine whether the executor has exercised his duties under the will properly and in accordance with the law.”

Tracing the Missing Asset

In some cases, claimants have been able to prove that an estate asset has gone missing even though the executor is not in possession of that asset. The asset must then be traced in order to recover it from whoever possesses it. The person who is in possession of the missing asset will be ordered to return the asset to the estate where it will then be distributed as detailed in the will.

Reminders for Beneficiaries

Beneficiaries do not have a lot of control over the estate administration process, however, there are options available to them to ensure that the process is done correctly. If you’re a beneficiary who is suspicious that the executor may have stolen an asset from the estate, contact an experienced estate lawyer today. We can ensure that the estate is administered appropriately and the beneficiaries are given their fair share of the estate.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
December 18, 2020
Drafting a Will: The Basics

Before worrying about technical requirements of a valid will, it’s important that testators understand the basics. Will writing goes well beyond simply distributing assets to different loved ones, and testators should understand this. Some of the most important tasks of a testator include: appointing an executor, appointing legal guardians and representatives, choosing beneficiaries and choosing how to distribute the estate.

Appoint an Executor

Your executor is responsible for its administration of your estate after you pass away. Some of the tasks an executor is responsible with include paying outstanding debts, selling estate assets, and distributing gifts to beneficiaries.

The appointed executor(s) are usually entitled to receive executor’s fees as compensation for their work as executor.

Depending on the size and complexity of your estate, the job of the executor can be extensive. We recommend that you choose an executor who you can trust and is willing and able to complete the job. The executor can be a beneficiary in the will. Sometimes, people will name all their children as joint executors of their will. This way, each child has a part in the administration, and it helps to distribute the work load. Having multiple executors can reduce the risk of fraudulent behaviour, as each executor has to approve of the decisions made on behalf of the estate. However, it may give rise to other problems in the administration process if the joint-executors disagree on certain issues.

Appoint a Guardian

If you have children under the age of 19, it’s important to appoint someone who will be their legal guardian. If both of the child’s parents pass away, a guardian is someone who will be the caretaker for your minor children. When a guardian is not named in the will, the family courts have to appoint someone. To have full control, it’s always best to include an appointed guardian in your will.

When appointing a guardian, it’s best to speak with family members to see who would be the best fit for your children. Depending on their age, it can be a huge responsibility to undertake guardianship and the appointed guardian must be willing. Typically, an appointed guardian is one of the testator’s siblings or another close family member.

Plan For Future Incapacity

Will-writers should appoint a power of attorney to handle their financial and legal matters should they become incapable. The circumstances under which the person can make decisions is dictated by the power of attorney agreement. The most common form is the enduring power of attorney. This is when you appoint an attorney to make decisions for you only if you become incapable in the future. The appointed enduring attorney only has the authority while you’re incapable of making the decision on your own behalf.

A representation agreement is very similar to a power of attorney agreement. However, representatives are usually tasked with making health and personal care decisions. It’s often a good idea to appoint a representative and a power of attorney as part of one’s estate plan. Your estate plan can also include directions and for the representative to follow, ensuring they understand your wishes.

If your estate plan doesn’t appoint a power of attorney or representative, a committee must be appointed if you become incapable in the future. Unlike the power of attorney or representation agreement where the parties simply create a contract, a committee must apply to the courts to be given authority. Since this is a court process, it will often be lengthy. Also, the incapable person would have little say in who applies and becomes their committee acting on their behalf.

Pick Beneficiaries

Beneficiaries are the people who you are going to give gifts from your estate to. Beneficiaries in a valid will can be anyone; inheritance is not limited only to family members of the deceased. People can also select charities and organizations as beneficiaries in their will. While testators have full control to choose how to distribute their estate, spouses and children cannot be unfairly disinherited in BC. Testators must make adequate provisions for the proper maintenance and support of their spouse and children in their will. In some cases, parents can have valid reasons for disinheriting a child which allow the testator to override this provision.

Some testators choose to only name their children and spouse as beneficiaries, while some testators name close friends, charities and relatives as beneficiaries. It’s up to you as the testator to decide this on your own, without being unduly influenced by anyone.

Distribute the Estate

Once you know who you want to give your estate to, you must decide how much of and what to give each beneficiary. You can also decide how you want the estate assets distributed (i.e. to distribute your physical assets as they are, or sell them and distribute the funds). When gifting a large asset like a house, it can bring along many responsibilities and expenses for the beneficiary. It’s a good idea to work with the beneficiary and understand their position on receiving the gift.

Sometimes it’s easiest to sell all the estate assets and give each beneficiary a specific percentage of the estate residue. This isn’t always the case, as families often have assets that they want to pass down for generations to come. In the end, it’s at the discretion of the testator how they choose to distribute their estate.

The Formalities of a Valid Will

By law, you do not need a lawyer to draft a valid will in BC – you can make your own. However, we strongly recommend testators get advice from an experienced will-drafting lawyer. There are various different formalities to consider when writing a valid will. In addition, there are many different tips and tricks to reduce any risks of confusion when people are reading your will. As an example, the wording in a simple provision can have various different legal meanings which can interfere with the administration of the estate in the way which you intended.

When a testator is giving a gift to “their children,” it may seem obvious nd clear who is to receive the gift. However, does “their children” only include birth children? This could include their stepchildren as well. This is only one of hundreds of different mistakes and misunderstandings that can arise from a poorly drafted will.

Even though there are many do-it-yourself kits for wills online, we encourage everyone to at least hear the advice of an estate lawyer before finalizing their will. Fixing any discrepancies or ambiguities before it’s too late can save your estate and your family significant amounts of time and money in legal fees. If you need help drafting your will, contact an experienced estate lawyer today. We can ensure that your will is written properly and won’t cause any problems for your loved ones after you have passed away.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

December 8, 2020
Picking an Executor: Who Should You Choose?

Choosing an executor for your estate is a key step in the will-writing process. There are many factors to consider, and it’s not always as simple as choosing a family member or friend. The job of an executor can be complex, involving many different tasks as they prepare the estate for distribution to beneficiaries. Before appointing an executor, it’s important to understand who is eligible, and who would be a good fit.

Who Can Be an Executor?

Almost anyone can be the executor of a will in BC. This can include beneficiaries named in the will, a spouse, a best friend or even a lawyer. The only requirement is that the executor is not a minor (they must be at least 19 years old).

Naming Multiple Executors

A person named as the executor of a will can decline the duty before beginning the estate administration.

Will-writers are able to name multiple people as executors of their will – known as co-executors. This is beneficial in some cases as it spreads the workload across multiple people. However, co-executors must agree to all decisions made on behalf of the estate. This can further complicate or prolong the estate administration process. Frequently, parents choose to name all of their children as co-executors in the interest of fairness. If some of the children have moved away, the task of coordinating the administration process can become more difficult. Naming co-executors can be beneficial in some cases, but can be detrimental in others. It is important to carefully consider who to appoint. In cases of co-executorship, it is essential that the executors are able to work well together.

Naming a Professional Executor

For will-writers looking for a truly neutral party to act as executor, a professional executor can be appointed. They are often lawyers, notaries or accountants. This will cost more than naming a loved one would, however, it will ensure that the estate is administered at a professional level. Sometimes, people choose to name a professional and a family member as co-executors. This way, the family member can handle most of the estate affairs, and the professional can assist them. This ensures that the administration is done properly and efficiently. For more on this, read our blog on whether you should appoint a professional executor or not.

Characteristics of a Good Executor

Will-writers should be sure that they are choosing the right person to act as executor of their will. Will-writers should choose an executor who is objective, trustworthy, lives nearby, and willing to take on the role.

a)      Objectivity

Executors must act in the best interest of the estate’s beneficiaries and strictly adhere to the will’s directions. If the executor is named as a beneficiary in the will, which they often are, they should always be acting from an objective standpoint. The executor cannot act in ways to maximize their benefit from the estate at the cost of other beneficiaries’ entitlements. Objectivity is essential to the estate administration process and it’s important that the executor can take a neutral position when making decisions on behalf of an estate.

b)      Trustworthiness

Because of the authority and power that an executor has over the distribution of an estate, will-writers should always name someone who they feel is trustworthy. Estate administration can involve handling large amounts of money – paying unpaid debts owed by the estate, selling estate assets, etc. Even though executors must provide a detailed account of everything that went in and out of the estate, an interested party must be very thorough to notice if the executor has attempted theft.

c)      Residing in the Same City

Naming an executor who is living near the place where the estate assets reside is very important. If someone who lives outside of Canada is named as executor, there can be significant complications as they transfer the estate’s assets. Further, they will run into a number of obstacles trying to fulfill all of their responsibilities while abroad. It is always recommended that the executor be someone who lives in the same city as the assets, or someone who can easily travel to the city for an extended period of time to administer the estate.

d)      Willingness

If you are named the executor of an estate in a will, you will not be forced to take on the role. Will-writers should talk with the people who they want to be their executor to ensure that they are willing and prepared to take on the responsibility. Someone who is unwilling or reluctant to administer the estate is less likely to do a good job of the administration, or could cause significant delays in the distribution of the estate. Even if you think someone would be a great fit for the job, you must make sure they are willing. Usually, the executor’s job requires significant time and energy, and the role can place a large burden on some.

If your estate is large and complex, it can feel like a second full-time job to your executor as they work to administer your estate. Ensuring that an executor understands the role they’re agreeing to and the tasks which they’ll be responsible for is important in making sure they can handle the job. It is advisable to discuss the role with the person who one would like to name as their executor before their death, as if an executor renounces their title after the death of a testator, the courts will have to appoint a new one which may conflict with one’s final wishes.

Ultimately, it’s up to the will-writer to choose who their executor should be. If you’re unsure who to appoint, contact an experienced estate lawyer today. We can help you to pick someone who will properly administer your estate.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

November 30, 2020