January 2015 - Garton & Harris

The basics of writing a will in British Columbia

January 30, 2015/in Wills/by gartonandharris

Individuals who are concerned for their families upon their incapacitation or death have the option to write wills. This provides those individuals with a means through which they can express their wishes for the aspects that mean the most to them, such the who will be their executor of estate or who will have guardianship of their children should their passing come suddenly. Wills are also used to determine the distribution of their assets, no matter how few they have.

Any person aged 16 or older can write a will as long as the individual has the mental capacity to do so. The will has to be written, and the will-maker has to sign it at the end, along with two or more witnesses who must be at least 19 years old. Will-makers who are unable to sign must recognize the provided signature as their own. The will-maker’s and witnesses’ signatures must be added while each of the signers are present.

However, there are exceptions to these rules for members of Canadian military forces who are on active duty and wish to write wills. They may make a gift of property in a will no matter their age, and they must sign at the end. A witness does not need to be present during the signing, nor does a witness need to sign. However, military will-makers who direct other people to sign for them need to be present at the time of signing. In this case, there must be a witness present as well, and that witness must also sign at that time.

Writing a will may appear complicated to many people who are not familiar with the assets that are addressed and those that are not. Those who are confused about what to include and how to ensure that adequate provisions are made for their spouses and children could ask lawyers for help.

Powers of attorney in British Columbia estate plans

January 21, 2015/in Power of Attorney/by gartonandharris

Accidents and illnesses strike people no matter their age. When people are considering how to handle their estates and assets, they may also consider having plans in place if they become unable to make decisions for themselves or handle their own affairs. This can be an important consideration for all individuals who are over the age of 18.

People are able to draft a durable power of attorney, which is a legal document that designates another person to make decisions on behalf of the drafter. The document is normally triggered by a specified event. For example, the person may grant a durable power of attorney on a limited basis if he or she will be traveling and unable to conduct important transactions or manage his or her own affairs. Durable powers of attorney may also be utilized to grant broad authority to an agent if an illness or accident has left the grantor incapacitated.

Powers of attorney allow another to make important decisions and conduct business in order to manage the grantor’s personal affairs. If a power of attorney is not in place, the person’s family may be left in a position of being unable to access accounts and information necessary to carry on while their loved one is unable to make decisions.

When people are planning their financial futures, they should not overlook a power of attorney. It can be difficult to plan for an accident, but by doing so, people may put themselves, their families and their estates in better positions. People may want to discuss drafting durable powers of attorney with their estate planning lawyer. A lawyer may help draft legally sound documents that afford protection.

Intestate succession in British Columbia

January 15, 2015/in Wills/by gartonandharris

A large number of people die each year without a will. In the event that occurs, their assets will pass according to the provincial intestate succession laws. Intestate succession is defined by provincial law, and a judge will order the passing of property to heirs according to those laws.

If a person dies with a spouse but no children, the entire estate will pass to the surviving spouse. In the event a person dies with a spouse and children, the spouse’s and children’s shares of the estate will depend on whether the children are shared by the spouses or if the children are from another relationship of the decedent. When all children are from both spouses, the spouse will receive the household furnishings and a preferential amount of $300,000 of the estate’s value or more. If the children of the decedent are from a prior or different relationship, the surviving spouse’s preferential amount is $150,000 with the remainder being distributed to the children.

If there is no surviving spouse, the assets will pass first to children. If there are no lineal descendants, the decedent’s assets will go to the decedent’s parents. If both the decedent and his or her parents are dead, the assets will go to the descendants of the decedent’s parents. If none survive, but grandparents are living, the assets will go to the grandparents. Succession following that proceeds accordingly to other descendants of the grandparents and so forth.

Every person should consider drafting wills to be an important part of their overall financial planning. With a will, a person can control how his or her assets will pass. If no will exists, the person risks living their family members to go through a potentially lengthy court process. People may want to discuss drafting a will with an estate planning lawyer.

Planning for the inevitable

January 7, 2015/in Wills/by gartonandharris

Everyone in British Columbia will eventually pass away, and planning for the inevitable is important in order to make certain one’s wishes are followed in terms of important decisions, types of end-of-life treatment and passing of assets to beneficiaries. With careful planning, people can make certain they have a degree of control over the important decisions that may be needed in the event they become incapacitated as well as the manner in which their estates will be handled.

No one can know when an unexpected event may occur. With advances in medicine, there are many treatments now available that may extend life. If the person’s wishes regarding the types of treatment they wish to have are unknown, families may be left to struggle with making such decisions. Cases such as the case of Terry Schiavo in the United States demonstrates that, without a legal document, families may spend years in litigation over end-of-life or life-prolonging care.

There are several documents people should consider drafting. Advanced medical directives are legal documents that are also commonly referred to as living wills. These documents clearly define the types of treatment the person is willing to receive and which treatments they wish to forgo. When a living will is in place, the person’s family is spared from potentially fractious and highly emotional decisions. An enduring power of attorney is also important. This document allows a designated agent to make important financial decisions on behalf of an incapacitated person.

Although most people are familiar with wills, having a will as well as the important pre-death documents in place can be vital in helping family members know what decisions to make. By making certain all three are in place, families may be spared the pain of litigation in the event an unexpected accident or illness happens.

Source: Canadian Living, “What you need to know about writing a will“, Cherie DeLory, January 06, 2015

Wills Act replacement affects British Columbia inheritors

January 2, 2015/in Wills/by gartonandharris

The wills people leave to provide for their loved ones must be executed to have the intended effect. On March 31, 2014, the Parliament of British Columbia enacted a Wills, Estates and Succession Act that made some changes to the existing laws. While the new legislation was written to ease the inheritance process, it grants courts powers that may result in notable changes in how wills are handled and how people structure their estates.

With the Wills Act replacement, courts were given the authority to accept some informal documents as valid wills. When wills are unclear, parties in dispute may also present the court with evidence from external sources. Whereas wills were once nullified by marriages, they now retain their validity following new unions. Courts also have jurisdiction over gifts. Land and personal property are applied to estate debts, and courts may decide to allow will witnesses to receive property.

These new rules may not guarantee that someone’s will is executed precisely as they intended. When wills bequeath properties that no longer belong to the testator, for instance, these properties could be subject to ademption by extinction; because the asset doesn’t belong to the estate, its beneficiary receives nothing apart from other gifts. Courts have discretion over when to enact these will corrections.

Changes in probate and will law may affect individuals and their estates differently. Execution can depend on factors like how a document is structured or the nature of the particular assets being distributed. Those with existing wills may find it helpful to educate themselves on the new laws and learn how their current plans could be affected.

Source: British Columbia gov, “Division 4 – Altering, Revoking and Reviving Wills“, December 30, 2014

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