April 2015 - Garton & Harris

Appointing an executor makes estate administration easier

April 29, 2015/in Estate Administration & Probate /by gartonandharris

When you think of estate administration and probate, you think it must be really complicated and hard to understand. As of March 2014, the Wills, Estates and Succession Act modernized the law in British Columbia. They made it somewhat easier to understand and put to use.

The financial institution that holds your assets is part of the estate that you need to probate. You need to be in contact with them to see if they require you to have your executor apply for a representation grant or not. The executor can’t act on your estate at all if the institution requires the grant and you haven’t put it in place.

This may be something that your solicitor or attorney can assist with because, even though it may be simpler, it can still be confusing.

You may also have an administrator if you die without leaving a valid will. If there is a will in place, and you didn’t name an executor, the executor died without a replacement or the executor decides not to be your representative, you can use an administrator.

The court will have to step in if you pass away without a will or if you didn’t appoint an administrator.

The duties of an executor or administrator are as follows: They complete an inventory of your assets and debts. They keep an accurate list of all beneficiaries. They cancel your subscriptions and your charge cards. They must, out of necessity, take control of all your assets and need to be able to collect any debts that are owed to your estate.

They look at your debts and are authorized to pay them all off, if needed. They also file your last tax return.

Getting your estate in order can bring you peace of mind. You need to know that getting this done will give your beneficiaries the direction that they need to grieve their loss without additional anxiety over these important estate administration matters.

Source: British Columbia Ministry of Justice, “About Wills and Estates,” accessed April. 29, 2015

What is the New Wills, Estates and Succession Act?

April 21, 2015/in Wills /by gartonandharris

When you have a will in place, you get a sense of peace and you know that no matter what happens, your children know what is supposed to happen. According to the New Wills, Estates and Succession Act, there are many changes to the law.

First of all, before the new law was enacted, a person who survived the death of his or her partner or parent was entitled to the listed assets in the will. Now, though, you have to survive at least five days after the person who left you his or her assets and property in order to become his or her inheritor.

The parentelic system was common, too, stating that the spouse was able to keep the spousal home for life. The new law says that a new regime can be put in place that the home can be given to the spouse to settle his or her part of the estate, but it doesn’t have to.

The old law stated that you had to be 19 years old to have a will be legal. Now, anyone over the age of 16 can now put a will in place.

Another new aspect of the WESA law is that, even if you are a witness to the will, you can inherit a portion or all of the property listed in the will. You may have to prove to the court that there was no undue pressure or coercion in making this will.

The old law said that if no one was entitled to the property, then the executor inherited everything. Now, however, the entire list of assets reverts back to the government, or crown, if no one is inheriting the property listed in the will.

If something happens and you can’t inherit the property or assets in the will, the property goes to an alternative beneficiary, such as a sibling or a child.

Knowing your rights going into this situation will help you in the long run. Having a lawyer by your side is always wise.

Source: The People’s Law School, “The New Wills, Estates and Succession Act (WESA),” accessed April. 21, 2015

Power of attorney needs to be well thought out

April 15, 2015/in Power of Attorney /by gartonandharris

When you think of advance care planning, you automatically think of what you want to happen when you can’t speak for yourself. It is important to choose someone to give your power of attorney to so that your wishes can take effect. What are your values? This comes into play when you are thinking about final care.

An advance care plan is simply a written summary of instructions that you give to a representative who will carry out these desires on your behalf when you no longer can do this. Your medical wishes will be included in this plan so you need to be sure that all the elements are mentioned in enough detail to get your point across.

Having someone guide you through this process can make a huge difference in the outcome of this document.

There are steps to take in order to ensure that the document is enforceable. The first is to look over the British Columbia government’s guide called “My Voice: My Wishes for Future Health Care Treatment.” This breaks down the process into bite size pieces.

The second step is to have a family conversation or two about your beliefs, values and wishes so that no one is taken by surprise. Without this step, your children could end up in a court battle.

Decide which health care treatments are right for you and list those you will not accept for yourself. Breathing machines and feeding tubes are two examples of what you might not want. Again, talking to a professional who has experience with this situation is invaluable.

Putting your advance care plan in a safe but accessible place is the final step.

Knowing what will happen after you can’t voice your wishes is important. Getting the information in the right hands with a power of attorney can give you peace of mind.

Source: British Columbia, “Advance Care Planning,” accessed April. 15, 2015

British Columbia Lottery sued by casino

April 9, 2015/in Civil Litigation /by gartonandharris

The British Columbia Lottery Corporation is being sued for over $18 million by one of the provinces largest casino companies. Great Canadian Gaming says that they only decided to pursue litigation after efforts to resolve matters amicably over the last few years were unsuccessful. The dispute concerns money that BCLC allegedly continues to collect for a defunct trust fund.

The trust account in question was set up as part of a marketing agreement between BCLC and casinos with 300 or more slot machines. Monies paid into the account by the casinos were used by BCLC to fund initiatives that promoted responsible gambling in British Columbia. The agreement was terminated by BCLC in 2009, but Great Canadian Gaming claim that the annual deductions are still being collected from their operation. Great Canadian Gaming says that BCLC are not legally entitled to collect this money.

Great Canadian Gaming claims that BCLC made it clear that no more payments were required when they terminated the agreement. The $18 million sought in the lawsuit represents monies collected by BCLC for the defunct trust between 2010 and 2014. The gaming company suggests that they have tried unsuccessfully to have the collections stopped every year since the promotional arrangement ended. A BCLC representative declined to comment about an ongoing lawsuit.

Business disputes often involve large sums and inflexible parties, and litigation may be an option when attempts to reach an amicable agreement prove unsuccessful. However, there is always a degree of unpredictability with court action. An experienced business law lawyer might help resolve disputes before initiating litigation, but they could also advocate vigorously on behalf of their clients in court if necessary.

Source: CBC British Columbia, “B.C. Lottery Corporation sued for allegedly taking casino cash,” Jason Proctor, March 29, 2015

Understanding testamentary trusts and how they may change

April 3, 2015/in Estate Administration & Probate /by gartonandharris

British Columbia residents interested in probate and estate planning issues may want some information on the different types of trusts. Depending on how they are used, there may be issues with the trust changing categories.

In estate planning law, there are two major types of trusts: inter vivos and testamentary. Testamentary trusts are created at the time that the person passes away. This generally happens through either a will or by a court order. All other trusts are categorized as inter vivos trusts.

There are some specific issues regarding the timing and creation of a testamentary trust, which may affect the type of trust that it ultimately is. For instance, if the testamentary trust was created by someone other than the person who is deceased, this may not qualify as a testamentary trust. If the property under the trust is not properly distributed as ordered in the will, the trust may become an inter vivos trust instead. The testamentary trust also faces the possibility of conversion to an inter vivos trust if two conditions are met. First, it was created in any tax year following December 2002. Second, the trust guarantees or pledges to pay a debt in a transaction where a beneficiary is an interested party.

There are other ways that a trust may be converted, some depending on whether or not the trust was created before or after Nov. 20, 1981. Understanding the particular rules of trusts, wills and other estate planning vehicles can be difficult without the help of a lawyer. The lawyer may be able to assist a person in setting up their estate plan, as well as taking care of the estate administration in order to help ensure that assets are distributed according to the client’s wishes.

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