League and Williams Lawyers

Tag: wills

Estate Bank Accounts: Why Executors Should Open One

The size of the estate and the number of transactions during the estate administration process can make it very complex for the estate executor to manage all the debts the estate owes and the funds coming into the estate from asset liquidation. In most cases, we recommend executors to open an estate bank account. This account, reserved solely for the estate’s financial transactions, is a temporary one that the executor of a will uses to consolidate all of the estate’s funds. This consolidation helps the executor reduce the complexity of recording all transactions they make on behalf of the estate.

Benefits of an Estate Bank Account

All Assets and Transactions are in One Place

Executors in BC can open an estate bank account before the will has been granted probate.

It’s no secret that estate administration involves numerous transactions, which may include paying off the deceased’s credit card debt or selling their house. Having an estate bank account simplifies accounting related to the estate and ensures no assets of the estate are lost or unaccounted for. Using an estate bank account allows the executor to directly deposit any proceeds from the sale of estate assets directly back into the estate, simplifying the asset liquidation process. Further, cheques written out to the deceased can be directly deposited to the estate account by the executor. A single estate bank account makes it much easier for an executor to account for all the assets and cash of an estate, while simplifying the distribution process when the time comes to distribute the proceeds of an estate to its beneficiaries.

Easier to Make an Account of the Estate for the Beneficiaries

When the executor finishes the estate administration process and prepares to distribute the remainder of the estate to the beneficiaries, they must provide a comprehensive account of all the funds that entered and left the estate. The beneficiaries must approve the accuracy and detail of this report before the executor can distribute any assets. In cases where a beneficiary does not approve of the account, they can request a passing of accounts, where the executor must prove all the transactions of the estate before the courts.

Having an estate bank account makes it very simple to account for all the transactions made. In the rare circumstance where the executor must prove the transactions in a passing of accounts, most bank institutions can provide a comprehensive account summary. The summary will be clear and exact in its description of when assets left the estate and when assets came into the estate.

Prevents Joint Accounts from Causing Confusion

In some cases, people have joint bank accounts with their spouses, this can complicate the process of differentiating between the estate’s assets and the spouse’s assets. Establishing how much of the joint account belongs to the deceased, and putting that amount into a separate estate account ensures that the joint owner will not be able to spend any funds that rightfully belong to the estate.

Additionally, estate bank accounts help to avoid the commingling of funds (mixing funds belonging to different people into one account) with the executor’s accounts. Without a separate estate bank account, it can be easy for an executor to accidentally use the estate’s funds for their own personal use. This creates personal liability concerns for the executor – estate bank accounts can help to minimize this risk.

Easy to Open an Estate Bank Account

An estate bank account is not a special bank account; the executor can simply open a regular chequing account with the bank under the name of the deceased. The bank will likely need to see the will and a death certificate to ensure that the person opening the account is an executor of the will. When the will names multiple executors, they must make decisions unanimously. Therefore, for a cheque written out of the estate bank account to be valid, all the executors must sign it.

Executors don’t have to open estate bank accounts with the same institution that the deceased used before their death. The executor can choose any bank institution to open the estate bank account. Executors can even open estate bank accounts before the grant of probate in preparation for administering the estate.

While it may seem like additional work for an executor to set up an estate bank account, estate administration is typically more complex than one expects and having an estate bank account will be hugely beneficial to the executor in making their duties more straightforward. Having all the estate’s assets in one account will make it easy for executors to prepare accurate accounts of the estate administration transactions, while avoiding any risk of commingling of funds or complications arising from joint accounts.

If you’re an executor of a will and need help administering an estate, contact an experienced estate lawyer today. We can help to ensure that the will is executed properly and in a seamless manner.

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 1, 2022
Estate Planning: Six Reasons Why an Update May be in Order
Many people don’t start thinking about their estate plan until they are thinking of retirement, or see will writing as a ‘set and forget it’ exercise. Will writing can be a long, tiring and emotionally stressful process and as a result most will-writers prefer not to think about the document once it’s been done. Unfortunately, lack of timely updates can create discrepancies between the terms of one’s will and their true intentions at the time of their death.

Everyone’s life changes over time, often unexpectedly, and it’s normal to forget to reflect these changes in estate plans and make updates accordingly. It is good practice to review a will and estate plan annually to ensure that everything is up-to-date and accurately reflects how the will writer intends to distribute their estate. If you’ve had a major change or addition to your life and family, it may be time to update your will. For more on this, read our blog on what to do after a will is written. If you haven’t written a will yet, read our blog post on why you should have a will and the benefits of having one.

How You Can Update Your Will

If, as a result of your review, changes to your estate plan are needed, there are two main ways of making modifications: writing a codicil and writing a new will. Each option has different benefits depending on your individual circumstances. While it might sound burdensome to re-write a will or draft a codicil, it’s often much easier than it sounds. Usually, the new will is very similar to the original and simply incorporates the few changes that the writer wishes to make. For more information, read our blog on how to make a revision to your will.

In addition to a will, there are other components to a well thought out estate plan that you can consider, including:
- A power of attorney – appointing an individual with the legal right to manage your legal or financial affairs in case you are unable to;
- A healthcare proxy or representation agreement – this enables someone to make healthcare decisions on behalf of someone else if they’re incapable; and,
- An insurance coverage review – terms of a will do not automatically apply to property such as life insurance, RRSPs, RRIFs and TFSAs (if the accounts have named beneficiaries).
Some of the most common life events that require a will to be modified are as follows:

1. Birth of a Child

A will can be varied by a judge in BC if it is ruled to be an unfair under specific criteria.

Arguably the most significant life-altering event in someone’s life is the birth of a child. Parents can become busy with their newborns and forget to update their will to reflect this important change. This can be true in the case of grandchildren being born as well. While succession plans may seem obvious, you should clearly express your intentions in a will. This is particularly important if you have multiple children who you’d like to inherit different assets. Parents or guardians of minors should appoint a guardian to care for them in the event of their parents’ death. A guardian is someone who would be the legal caretaker for the children until they reach the age of majority, and you should update to your will to include information for your child’s potential guardian.

2. Marriage and Divorce

Spouses are typically the most prominent beneficiary in their partner’s will. Following a marriage, separation or divorce, people should clearly reflect their change of marital status in their will. Many spouses choose to form a joint or mutual will which means that the first person to die will have their entire estate transferred to their spouse. If the other spouse dies, then the estate is distributed according to their will. Remember that someone who has lived in a “marriage-like” relationship with someone for two or more years may have rights for spousal support as if the couple were legally married. For more information, read our blog on spouses.

3. Receipt of an Inheritance

If a person inherits an estate asset, they should update their will. This is crucial, especially for high-value assets. Excluding a large asset from the will may result in intestate distribution of the asset. Intestacy laws could divide your estate contrary to your wishes. Always remember your will to reflect new inherited assets as soon as possible.

4. Business Creation and Sale

Business owners must revise their wills to include their company shares and their interests in the company. Keep the document up to date if the company relationship or structure changes. Sometimes, parents want one child to control the business. The other children may pursue different careers. One child may buy siblings’ shares to ensure a fair transaction.

5. Tax Legislation Changes

Tax laws change frequently. People may not know about available tax advantages when distributing an estate. Consult estate planning professionals to keep your will current and ensure efficiency for your financial planning. Maximize your estate’s potential value under the latest tax laws by keeping your will updated.

6. Death of Named Beneficiaries

Named beneficiaries might die before the will writer. In such cases, redistribute the estate to other family or friends. Otherwise, intestacy rules may apply. Update your will to distribute assets as desired. For more on the rules of intestacy in British Columbia, see Part 3 of the BC Wills, Estates and Succession Act.

Update Your Will- Next Steps

Updating your will after a life-altering event isn’t difficult. However, excitement or despair may make you forget estate plan consequences. Regularly review your estate plan with an experienced lawyer for effective planning for the future. Ensure your will and related documents reflect your intentions at the time of your death.

Looking for more information? Read our page on the basics of estate planning.

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, 2022
Testamentary Incapacity- Appointing a Committee in BC

Many people beginning their estate plan fail to consider the possibility that they will become intellectually incapable as a result of a degenerative disease, like dementia. For the family of people experiencing degenerative disease, the implications of the illness on their estate plan is often the least of their concerns. However, it is important to understand the challenges testamentary incapacity can pose for both testators and their beneficiaries. You can appoint a committee to ensure that a testator is protected and making choices in their best interest. This committee will support the estate planning process and help manage the testator’s estate while they are living.

Types of Committeeship and Their Appointment in British Columbia

A court in BC can appoint two types of committees: the committee of estate, and the committee of person. Both play important roles in the lives of testators who are losing or have lost their testamentary capacity due to illness. A committee of estate is responsible for making decisions on behalf of the testator relating to their estate, largely concerning financial and legal issues. The committee of person is responsible for decisions regarding personal, medical and end of life care for the testator. A committee has rights and responsibilities largely similar to those of a power of attorney. However, the individual must appoint the power of attorney before they lose capacity.

Appointing a Committee

The courts can appoint a committee at any point when an interested party, such as a loved one, demonstrates that the testator is incapable according to the Adult Guardianship Act (1996). This distinction is important because, although a power of attorney is a crucial estate planning tool, it becomes ineffective if the testator is already incapacitated at the time of its execution. Since the testator’s status at the time of executing the power of attorney can become a contentious issue and lead to estate disputes, it’s crucial to draft and execute a power of attorney early in the estate planning process. This ensures there is no dispute concerning its validity after the death of the testator.

People appoint a committee to manage the affairs of an incapacitated adult only after it becomes too late to appoint a power of attorney.

In order to prove the testator is incapable under the Adult Guardianship Act and petition the court for the appointment of a committee, an interested party must provide adequate medical evidence. They must also provide sworn affidavits from at least two doctors confirming the incapacity of the individual. The courts can appoint a family member or loved one, a professional, or the Public Guardian and Trustee of British Columbia to the role.

Why Appoint a Committee?

In British Columbia, an important element of any valid will is that its writer has testamentary capacity- the intellectual ability to freely make decisions relating to their estate in their best interest. Interested parties can dispute the validity of testamentary documents like a will or a codicil, or asset transfers, if they have uncertainty over the testator’s capacity at the time of creation. When the courts find a testamentary document or transfer to be invalid based on the incapacity of the testator, undue influence or a combination of the two, the courts can vary the will or undo the transfers.

When a testator is no longer capable of freely making decisions relating to their finances, assets, or personal care and health, a committee provides essential care and support. Without a committee or power of attorney to manage decisions relating to the estate, the incapacitated testator won’t be able to make legally binding adjustments to their finances or estate plan. They also may fall victim to undue influence from family and/or friends to change their estate plan against their true intentions.

Having a committee appointed is important where it is too late to have a power of attorney appointed to manage the affairs of a testator. If you’re concerned about the testamentary capacity of a loved one or the validity of their testamentary dispositions, 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.

November 16, 2022
6 Tips for Estate Executors for Easy Administration

The job of an estate executor is not always a simple one and can be extremely strenuous when dealing with complex estates. The executor must ensure the beneficiaries receive the inheritance they’re entitled to. If executors make significant mistakes in administration, they may face personal liability. In this blog post, we hope to give executors some tips to help them avoid unnecessary complications and administer the estate more seamlessly.

Tip 1: Ask for an Asset List

If the will-writer is still alive, executors should ask them to prepare an asset list to help with estate administration. Accounting for all of the estate assets is one of the first tasks an executor is responsible to undertake. It’s usually quite obvious to the will-writer what assets they own and where they are, however, may not be obvious to the executor. A detailed list of assets can help ensure that administration of an estate gets off to a good start. By outlining what the assets are, what thee approximate value of those assets are and where they are is very helpful. If the executor lacks this information, they often scramble to account for everything that belongs in the estate of the will-writer.

Tip 2: Keep Detailed Notes and Accounts

A big part of the role of an executor is to provide a detailed account of everything that goes into and out of the estate while they are responsible for managing the estate’s assets. It’s best to prepare for this throughout the estate administration process rather than trying to recall all your past transactions at the very end. If any beneficiaries take issue with the detailed account, they can request a passing of accounts, where the executor will have to prove the accounting is legitimate to the courts. Maintaining detailed notes and recordings of all transactions made while acting as the estate administrator is always a best practice. By doing this, the executor can safeguard themselves from personal liability for potential missing estate assets.

Tip 3: Open an Estate Bank Account

Executors can open estate bank accounts in BC before the will has been granted probate.

A temporary bank account for the sole purpose of managing the estate’s assets (an estate bank account) can be a critical tool for executors to keep track of the estate’s assets and to manage them appropriately. Further, an estate bank account keeps all the estate assets in the same place and prevents joint accounts from creating complications in the administration. Having an estate bank account also helps executors to keep organized and differentiate estate assets from personal assets. For more information, read our blog on estate bank accounts.

Tip 4: Keep the Named Beneficiaries Updated on the Progress of Administration

An executor is responsible to the beneficiaries of the will, and needs to be working to make sure they receive their inheritance properly and in a timely manner. Sometimes, an inheritance has life changing impacts and it’s not uncommon for beneficiaries to become impatient while awaiting their inheritance. This can be frustrating for executors as the beneficiaries start to hound them for updates and ask them to speed up the process, which is often beyond the control of the executor. In other cases, beneficiaries are skeptical of the executor and believe that they are not is mishandling the estate or failing to accurately account for all assets of the estate.

To avoid confusion and frustration, it’s best to keep an open line of communication with beneficiaries, keeping them updated on a regular basis with what’s going on in the administration of the estate. When executors fail to communicate with beneficiaries, often find that beneficiaries become impatient and skeptical of the executor’s ability to administer the estate appropriately.

Tip 5: Be Reasonable and Manage Time Responsibly

Estate administration is by no means a race, and executors should take all the time they need to finish the job properly. However, executors should be mindful that they can’t unduly delay the process for legally invalid reasons. Beneficiaries are entitled to receive their inheritance in a reasonable amount of time and can force executors to take action when they fall victim to the lazy estate (a slow executor). Executors shouldn’t rush because no one will punish them for reasonable delays. Further, the executor’s year protects executors – they have a year to finish administering the estate before beneficiaries can start actions of the complain.

Tip 6: Don’t Be Afraid to Ask For Help in Administration

Just because a will names someone as the sole executor, it doesn’t mean that the executor has to handle everything alone. It’s not uncommon for beneficiaries and family members to lend a helping hand, so don’t be afraid to ask for help. Further, if you need professional assistance, estate lawyers and accountants can provide help with any complex issues that may arise, ensuring appropriate resolution. If you’re an estate executor and need help, contact an experienced estate lawyer today. We can help to ensure that the estate is administered properly and in a timely manner.

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.

October 31, 2022
Choosing an Executor: Should You Appoint a Professional?

An important part of the will-writing process is choosing someone to be the executor– the person who is responsible for administering the estate and distributing the estate’s assets. There can be a number of different factors that go into the process of choosing an executor. The job of an executor is typically not a simple one – it can involve a handful of different tasks as they prepare the estate for distribution to the beneficiaries named in the will. In some cases, it’s in the best interests of the will-writer and their family to appoint a professional to be the estate executor.

Will-writers who want a truly neutral party to act as their executor can appoint a lawyer, accountant, or corporate trustee. While this will cost more than naming a close friend or family member, it ensures professional administration of the estate. There can be many different reasons why will-writers think it is necessary to appoint a professional estate executor.

Complex Estate

Executors are ultimately responsible with managing all aspects of the estate administration. Executors are responsible for accounting for all of the estate assets, paying any unpaid debts the testator owes, managing estate assets for distribution, and locating all the beneficiaries of the will. The executor’s job can become very complicated if the estate has assets scattered around the world, beneficiaries living in other jurisdictions, or a number of debts to pay. The pressure can also become overwhelming, as executors can face personal liability for mistakes that harm beneficiaries.

If at all, many people only serve as an estate executor once or twice in their life, which means they have minimal experience. By hiring a professional, you can be certain they know exactly what they’re doing. As the will-writer, you can be assured that the administration will go smoothly and none of your loved ones will be burdened by this duty. Further, a professional executor can help to defuse family conflicts that might arise as a result of the administration.

Family Politics

Estate executors can decline taking on the role before they begin estate administration.

Often when family estate disputes happen it is due to the actions of the executor or the will-writer. As a will-writer, you can foresee and mitigate family conflict with proper estate planning. If a third-party professional administers your estate, you can mitigate family issues that arise from the estate. You can presume that the professional will act objectively, doing what is right for the beneficiaries and the estate. The professional will have nothing to gain by acting in the favour of certain family members.

Nobody Suitable

Often, people appoint a professional executor simply because they do not have any other suitable person to appoint. While people typically choose close family to be their executor, sometimes this isn’t an option. Maybe there is no one who you can trust to act objectively, there is no one physically or mentally able to handle the role, or you’re simply afraid nobody will carry out the terms of your estate exactly as you wish. Generally speaking, you will never want to appoint an executor who lives in a different country from where the majority of your estate assets are. The executor will need to be physically present for many of the executor’s duties.

Can’t Decide? Name Multiple Executors

Often, will-writers wish for their executors to have the objectivity and experience of a professional, but also personal knowledge and relationships of their family. Even though there isn’t usually one person who exhibits all of these traits, will-writers are able to name multiple executors in their will (co-executors). This can be a good idea in some cases as it eases the workload of the executor, however, co-executors must agree to all decisions made on behalf of the estate. It is common for parents to name all of their children as co-executors for their estate in the interest of fairness. In naming a professional and a family member as co-executors, the family member can handle most of the estate affairs with the professional assisting when needed and ensuring that the estate administration is done properly and efficiently.

If you think that a professional executor is unnecessary in your scenario, it’s still important to appoint the right person to be your executor. Different family members might be better suited for the job based on their physical location, personality and/or willingness to do the job. For more information, read our blog on choosing the right executor for your estate administration.

Ultimately, it’s up to the will-writer to choose who their executor should be. If you’re unsure if you should appoint a professional to be your executor, 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.

October 11, 2022
Removal of a Badly Behaving Executor in BC
As a beneficiary of a will, it can be frustrating to sit helplessly waiting while the will’s executor fails to administer the estate as expected. Unfortunately, executors sometimes cause intentional delays, are incompetent in their administration, or even abuse their powers to commit theft of estate assets. When this happens, the suffering falls on the beneficiaries – the value of estate assets changes over time, accumulated maintenance costs deplete the estate’s value, and the distribution of assets doesn’t always happen in a fair and timely manner. In these situations, beneficiaries may be able to seek removal and replacement of the executor.

Legal Grounds for Executor Removal

According to the judgement in Nieweler Estate (Re) (2019), there are four categories of conduct that will warrant a removal of an executor:
1. Endangerment of the trust property (estate);
2. Dishonesty;
3. Incapacity to execute the duties; and
4. Lack of reasonable fidelity (good faith).
The case of Radford v. Wilkins (2008) exemplifies the process through which the courts will change an executor. The factors that are considered when determining whether or not to remove an executor are:
- The testator’s choice of executor is not to be lightly interfered with,
- Clear necessity for removal in the interest of the estate’s administration must be established,
- Removal must be the only reasonable course to follow,
- Removal to be guided in the interest of the welfare of beneficiaries,
- Non-removal must likely prevent proper execution of trust, and;
- Removal cannot be not intended to punish past misconduct.
Reasons for Executor Removal

The courts will always hesitate to remove an executor because the testator specifically appointed them as part of their last wishes. However, when it is necessary to remove an executor to protect the beneficiaries’ welfare, the courts will issue an order. The courts view executor removal as a last resort option. Any interested party (someone with a legal stake in the estate) can make an application to remove the executor if they fail to fulfill their duties. Among other reasons, some of the most common grounds for executor removal include undue delay, refusal to act, and fraudulent behaviour.

Common Grounds for Removal

If the executor cannot reasonably explain the delays, the Courts can remove them from their position.

When an executor is actively working to fulfill their duties but experiences an unreasonably explainable delay. Refusal to act by an executor is when they are completely refusing to advance the administration of the estate. An executor’s refusal to act is commonly purposeful and rarely justifiable, especially since executors can renounce their responsibilities at any time.

If an executor behaves fraudulently in relation to the administration of the estate assets, it will also result in their removal. Executors also must release a full account of everything that went into and out of the estate to its beneficiaries. If the beneficiaries don’t agree with the accounts, believing that there may have been fraudulent activity or a miscalculation of estate assets involved in the accounting, they can have the account reviewed by the courts in a passing of accounts.

An Example from Caselaw

In the case of the Kajaks Estate (2016), the executor had failed to administer and distribute the estate after 9 years following the testator’s death. The executor was constantly delaying the process in an attempt to coerce the beneficiaries to agree to change the will to benefit the executor more substantially. It was evident to the court that not having received their portions of the estate for 9 years was impacting the welfare of the beneficiaries. Further, the executor demonstrated a lack of reasonable fidelity as there was no reasonable explanation for these delays. The courts granted an executor removal on these grounds so the estate administration process could move forward.

When The Courts Won’t Grant Executor Removal

The Canadian common law principle of the executor’s year is a general guideline for executors, advising that the administration process should be complete within a year from the testator’s death. During this year, we expect interested parties not to interfere because the administration process might take a long time, depending on the complexity of the estate plan. During the executor’s year, the courts probably won’t recognize any claims against the executor. However, after the first year, people can raise claims for removal due to undue delay. The executor’s year essentially gives the executor a grace period, but it’s not legally enforceable

Ways Forward for Beneficiaries

Conflicts of interest regarding executorship are generally not sufficient grounds for executor removal. In fact, it’s very common for the executor to be a beneficiary of the estate themselves. Beneficiaries expect the executor to act objectively, ensuring their personal interest in the estate doesn’t impact the estate administration process. Any arguments or tension which may arise between executors and beneficiaries are also not grounds to remove an executor. By law, the executor does not need to be friendly with the beneficiaries; they simply have to administer the estate in a timely manner, with the best interests of the beneficiaries at mind.

It is often easier and faster to avoid executor removal during the estate administration process, however, removal is sometimes the only option in cases where the executor refuses to take action or causes undue delay. If you’re a beneficiary who is suffering at the hands of an executor, contact an experienced estate lawyer today to begin solving the problem sooner rather than later.

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.
August 11, 2022
Estate Beneficiary Rights: Forcing the Executor to Act
The executor of a will has a handful of responsibilities when administering an estate – including accounting for all estate assets, debts, and money exchanges coming into and out of the estate. Once the executor finishes the administration process and is ready to distribute the estate to the beneficiaries, they typically need to give each beneficiary a comprehensive document that accounts for everything that has entered and left the estate. The value and complexity of the estate administration process can make this document extremely detailed and complex.

In the case of a careless executor, a beneficiary might raise questions over the process of administration.

Sometimes, an inheritance can change a beneficiary’s life, and it’s stressful when the executor isn’t managing the estate as expected. Unfortunately, some executors have committed fraud by stealing assets from the estate and not including them in their report to the beneficiaries. Beneficiaries must proceed with caution and ensure all assets are accounted for.

If you believe that the final accounts don’t properly represent the assets of the estate, there are options available:
1. Forcing the executor to act; or,
2. Suing on behalf of the estate.
How Can a Beneficiary Force an Executor to Act?

While beneficiaries might feel helpless during the estate administration process, they do have certain beneficiary rights. Beneficiaries have the right to the accounting information during the estate administration process. The law requires an executor to provide this information if a beneficiary requests it. Beneficiaries can keep close eyes on the estate through the accounting information if they’re suspicious of the executor’s intentions.

Passing of Accounts

When an estate asset has gone missing, it’s usually up to the beneficiaries to notice and act on it.

A beneficiary can compel the executor to act by petitioning the court for a passing of accounts. If the courts grant this motion, the executor must present to the courts all transactions, both incoming and outgoing, from the estate, from the date they took control of the estate to the date of the hearing. This process can clarify any inconsistencies in the accounts. It can track where all the estate assets went, verify what fees and debts were paid, and determine who receives what from the estate. This can be an exhaustive process, but it will show, in detail, everything that left and entered the estate accounts.

After forcing the executor to act through requesting a passing of accounts, if the beneficiary is still unsatisfied, they can sue on the behalf of the estate or look to have the executor removed.

Beneficiaries may feel they don’t have control over the estate administration process. However, they do have certain rights to ensure the process is managed correctly. If you’re a beneficiary that thinks an estate 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.
August 4, 2022
Benefits of Having a Will: Why writing a Will is Worthwhile

Will-writing, estate planning, estate administration, probate, trust funds, inheritances – the list of things for will-writers to consider goes on and on. In this blog, we’ll take a look at some of the benefits of having an updated and valid will and reasons to start your estate plan sooner rather than later.

Before going into the benefits, let’s first look at what happens when someone dies without writing a will. When someone dies without a valid will it is dying intestate. When this happens, the courts have a specific course of action that they take to distribute your estate. An estate administrator is appointed to act as the estate executor. Generally speaking, a person’s spouse and children inherit the entirety of the intestate estate. If the testator doesn’t have a spouse or children, their parents or surviving relatives receive inheritance from the estate.

Some people might argue that since they only want to leave their estate to their spouse and children, there is no point in preparing a will. To answer this, let’s look into some of the advantages and benefits of writing a will, even if the process of intestate succession is similar to your own intentions.

You Call the Shots

Writing a will offers the most obvious benefit: you decide exactly how to distribute your estate. When someone dies intestate they have absolutely no say in what happens to their estate. By writing a will, you can choose who receives what from your estate. Will-writers are able to get creative with their assets; some will-writers will choose to create trusts for their beneficiaries, who must meet certain conditions like graduating university to access their inheritance. In intestacy, there is a set formula that determines how much of the estate the spouse and children each receive. The deceased doesn’t have any say in this and is unable to make specific provisions for different people.

Every estate has an executor or administrator, or executor. They are responsible for paying estate debts and taxes, handling estate assets, and distributing the estate to beneficiaries. You’ll want to appoint someone you trust for this role, and make sure they are aware of what it entails. By preparing a will, you’re able to decide who the estate executor is. When you die intestate, anyone is able to apply to be the administrator of your estate. The courts have the final say in who is given the position.

Another decision you get to make with a will is who your children’s guardian will be. If both parents pass away while their children are still minors, someone must become their guardian. You can appoint a relative or friend who you believe would be the best fit for your children in your will. You are also able to use your will to put aside parts of their inheritance for a specific purpose, like tuition or money to put towards a house in the future.

Probate isn’t Exclusive to Will-Writers

Courts must validate most wills through probate. During this process, you must pay a probate fee of approximately 1.4% of the entire estate’s value. You can’t avoid probate fees by not writing a will – the estate administrator must still complete the probate process. Often, estates with prepared wills are granted probate faster than intestate estates. Preparing a will ensures that loved ones receive their inheritances much sooner and with less stress.

The Estate Saves Money

There are a number of advantages to gift giving before death – both financial and sentimental.

By creating an estate plan, there are ways to minimize probate fees and defer tax payments to ultimately increase the value of your estate inheritance for loved ones. For example, a common estate planning tool is gift giving before death. You can minimize the probate fees payable upon your death by lowering your estate’s value. In the end, the same people receive their inheritances; however, there’s more of the inheritance for them to enjoy, and you can watch them enjoy the gift in your lifetime.

A Will Can Make Your Estate Plan More Flexible

By writing a will, you have the flexibility to distribute your estate exactly as you’d like. Using trust accounts in your estate plan is one way to ensure your gift is given exactly as you wish. Maybe you want to give funds to a child in increments rather than a lump sum. Or, you want your spouse to continue living in your home, but have it given to a child after both you and your spouse pass away.

Keep in mind that you can revoke or amend wills at any time, as they are not final documents. After your first will is written, it’s easy and important to keep it updated. Writing a will doesn’t lock you into what you’ve written, so long as you have the capacity to make changes later in life. For more on this, read our blog on testamentary capacity in estate planning.

You Can Prevent Conflict and Stress

By creating your own estate plan, you are able to speak directly with loved ones and ensure that they know what to expect upon your death. Loved ones are often disappointed or offended if they’re left out of the will without knowing why beforehand, and this can unfortunately lead to legal conflict within the family. Simply explaining your intentions can help to alleviate a lot of tension. Further, if you die intestate, it can be stressful for your loved ones as they’re left uncertain with what will happen to the estate. Family members might argue over who they believe should be the estate administrator as they are unsure of your final wishes.

Often, people are concerned that they’re too young to prepare their will. While there isn’t an age that is the “perfect” time, we have a blog that outlines when a good time to prepare your first will might be.

At a minimum, having a will in your name can provide certainty for your loved ones in the difficult circumstances of a death in their family. Preparing a detailed estate plan may cost you money initially, but it can save your estate thousands of dollars and countless hours for loved ones dealing with an intestate estate. If you need help preparing your first will, contact an experienced estate lawyer today. We can help you create an estate plan perfect for your individual circumstances.

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.

July 7, 2022
Estate Planning Tips: Creating the Perfect Estate Plan

It’s important that estate planners create detailed plans that they’re happy with before they pass away. Estate planning goes well beyond simply writing a will. A robust estate plan should provide you and your loved ones with detailed plans for the end of your life. This usually includes appointing a power of attorney and a personal health representative. Preparing for end of life care in your estate plan can save stress and uncertainty in an already difficult time. Further, you can construct your estate plan to maximize value for beneficiaries while minimizing risk of litigation. In this blog, we’ll discuss our tips to ensure that your estate plan is as detailed and effective as possible.

Make Your Intentions Clear to Beneficiaries and Family

With estate planning, a goal should be to avoid any estate disputes amongst beneficiaries. Estate disputes create unnecessary stress and conflict between loved ones. Carefully preparing a valid will can help to avoid this conflict. Family members often raise estate disputes when they’re surprised by their inheritance, and had different expectations. Simply talking with your beneficiaries and family can prevent disputes, sometimes preventing lengthy legal proceedings. Hearing from you and understanding your reasons for making the bequests is usually enough to prevent conflict from arising.

Start Planning Early

People are always asking: at what age should I prepare my will? Unfortunately, there isn’t any magical age that we can tell someone to write their will. The answer to this depends on each person’s financial situation and at which stage they are in their life. Ultimately, it’s always best to prepare your will sooner rather than later. We encourage people to start thinking about their estate plan as soon as they’ve accumulated any assets. This can include traditional assets like real estate, or even digital assets. For more information, read our blog on when it’s time to write a will.

Appoint a Power of Attorney and Representative

Naming someone to be your power of attorney or representative in the case that you become incapable in the future is an important piece of a complete estate plan. You can appoint someone now, giving them powers over your financial, personal, health and legal decisions if you become incapable in the future. You are also able to appoint an attorney who only has powers over legal decision. Appointing an attorney is an important precaution. You can help prevent a loved one from having to go through court processes to be named your committee by appointing them before it’s too late.

Include Estate Residue Provisions

The residuary clause is often the largest bequest in a will.

Because of the estate administration costs, taxes, or unpaid debts that arise after death, it’s impossible to determine the exact value of your estate while planning. The volatile housing market also means that a house or land is likely to increase in value after you finish your final will. To avoid leaving assets in your estate without a beneficiary, will-writers often make a residuary clause in their will. This usually looks something like, “The residue of my estate is to be given to my husband.” If there’s no clause, the residue of the estate is distributed according to intestacy laws.

Review and Update Your Will Frequently

If you were keen and prepared your will early, there should be many more life events ahead of you which warrant a revision to your will. Maybe you write your will then in the future get married, buy a new car, invest in property, or have a child. Whatever the case, you will want to modify your will to reflect any significant life change. Once you’ve prepared your will, it’s usually not difficult to re-write a new will to reflect the new changes in your life. Another option is to prepare a codicil when you wish to make a simple change to your will.

Account for Your Assets

Accounting for all of your assets is one of the first tasks your will’s executor is responsible with. It’s usually quite obvious to the will-writer what assets they own and where they are. This information is not always so obvious to the executor. What you can do to help alleviate the burden on the executor is prepare a detailed list of all your estate assets. You should describe what the assets are, what their approximate values might be and where they can be found. Executors can find it difficult to account for everything you owned without guidance. Further, will-writers should include any passwords and account information for digital assets. For example, leaving email passwords can be extremely helpful for executors as email information might be crucial during estate administration.

Consider Life Insurance

People usually think of life insurance as protection in the case of an unexpected death – protecting loved ones by providing a significant sum of money to help care for them. Another way to look at life insurance for elderly people is as an estate planning tool. Having a life insurance plan can reduce probate fees, make estate administration more efficient and increase privacy. For more information, read our blog on life insurance as an estate planning method.

Consider Writing a Secondary Will

For people who have large estates, it might be a good idea to write two wills – one for probate assets and one for probate-exempt assets. By doing this, you can minimize your taxes owed and increase the value of your estate. There are some implications with a secondary will that should be considered; however, it is usually a good idea for business owners or people who own many shares in a company. For more information, read our blog on secondary wills.

Get Professional Advice

While you’re allowed to create your own valid will in BC, it’s not always the most suitable option. There are countless intricacies and details that go into planning a will in the best interest of the will-writer and their beneficiaries. The language in the will needs to be well drafted or else it can raise complications in the probate stage. With the help of an estate lawyer, you can be sure your will won’t create unnecessary difficulties and will be executed as you’re expecting. If you need help preparing your estate plan or simply want someone to review your will, contact an experienced estate lawyer who understands BC’s estate laws.

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 13, 2022
Storing a Will Electronically: Good or Bad Idea?
With the world quickly becoming more and more digital, people are constantly looking for new ways to go paperless. For many documents, it’s easy and safe to keep a copy on your computer, phone, or in ‘the cloud’. These methods ensure that will writers don’t lose their documents and can access them easily. When it comes to the electronic storage of wills, however, challenges can arise. Because it can be difficult to prove the authenticity of an electronically stored will, executors may find it challenging to have it cured. According to section 37 of the Wills, Estates and Succession Act (WESA), a valid will in BC is:
1. In writing,
2. Signed by the will-writer, and
3. Witnessed by 2 or more people.
These requirements make proving the legitimacy of an electronically stored will extremely difficult. Ultimately, a digital will cannot be a valid will without help from the courts. However, this doesn’t mean that digital evidence, electronic testaments and invalid wills are completely irrelevant for estate administration. When a document is considered an invalid will, but proves to be indicative of the will-writer’s final intentions, it can be cured into a valid will. Further, storing copies of a will, both physically and digitally, can be beneficial in some circumstances.

Curing Digital Documents

Not only professional documents, but also emails, text messages, notes, or voicemails could potentially be cured into valid wills.

BC’s estate laws aim to respect everyone’s final wishes and intentions. If someone doesn’t follow the proper will-writing procedures, BC courts can cure a testamentary document into a valid will. To clarify this process, let’s look at an example.

A woman, Ellen, writes a valid will in 2018 with the assistance of a will-drafting lawyer. In 2020, Ellen writes a new will on her own using Microsoft Word. She follows all the proper procedures to write a valid will, but never prints it or creates a physical written copy. Ellen also makes it clear in this electronic will that she intends to revoke the will she made in 2018. It’s clear that the will from 2020 is more indicative of Ellen’s final intentions than her 2018 will. The courts may be able to cure the Microsoft Word document into a valid will.

Statutory Law

According to section 58 of the WESA, the courts can cure the document into a valid will if it represents:
1. The testamentary intentions of a deceased person,
2. The intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
3. The intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
IIn the end, the court can cure Ellen’s electronic will and use it to administer her estate, but at what cost? The estate had to undergo the legal process of curing the testamentary document and appear before the courts to finally realize Ellen’s intentions. While creating this electronic document was better than doing nothing, Ellen could have avoided the extensive legal process if she had simply printed the will and had it properly signed and witnessed. Read our blog on curing testamentary documents for more information.

Storing Copies of the Will Electronically

Sometimes, if the original copy of the will is missing, a copy can serve as the final will left by the testator. If the original copy of the will is missing, the law presumes revocation. This means that the law presumes that the testator intended to revoke the will – either by intentionally destroying it or that they did not want it to be found. If an electronic copy of the will is to be used as the final will, this presumption must be rebutted. The claimant must prove, on a balance of probabilities, that the will writer did not intend to destroy the original copy of the will, and it was lost inadvertently. If they are successful, they then must prove the copy is a valid will (or can be cured into one).

When the original will is simply lost, having a copy of it stored electronically can be helpful. Read our blog on when the original copy of a will is required for more information.

Issues Will Writers Should Consider

While it might seem easy to have the courts cure electronic wills into valid wills, the process will be much more extensive than one may expect. Involving the courts in any dispute will lengthen the process, often making it more expensive at the same time. We always recommend taking measures to prevent any estate disputes from arising before your death. Storing a copy of your will electronically can be a good idea as a back-up plan, but it’s best to keep the original copy of your will in physical form. If you’re unable to keep your will in a safe place, some law firms are able to keep your will safe until your passing.

If you’re unsure of the best way to store your will, contact an experienced estate lawyer today. We will work to mitigate any risks of estate disputes involving your estate by advising you the best ways to properly store your will.

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 5, 2021