April 2016 - Garton & Harris

Are mutual wills a good option for couples in British Columbia?

April 29, 2016/in Wills /by gartonandharris

One of the most important things about a will is having the ability to change or revoke the document. When mutual wills are prepared correctly, the option to change a will may disappear. That does not necessarily mean that mutual wills are a bad idea for you and your spouse, but it does mean you should consider the decision carefully and talk to a lawyer.

The philosophy behind mutual wills concerns leaving property to one or more parties through a special kind of contract. In order to work as intended, two people draft similar wills and then sign a written agreement not to revoke their wills except by mutual agreement. The terms of these wills usually involve providing for each other after death. If both spouses die, mutual wills may provide for any third parties such as children of either spouse from previous marriages or relationships.

The signed agreement not to change the wills should continue after the death of one spouse. This prevents the surviving spouse from changing the will outside of the agreement. For example, if the surviving spouse changes his or her will to benefit parties not named in the mutual wills, it could be a breach of agreement and the previously-named beneficiaries may be able to take legal action.

Mutual wills are not without legal complications and should be given ample consideration ahead of time. Some things to consider include what will happen if divorce occurs and specific instructions about what assets are included in the wills.

Having said all of that, it is difficult for a lawyer to advise individuals about the kind of will they should choose without forming a relationship first. The best way for you to get a more accurate answer to your question is to consult with a wills and estates lawyer serving British Columbia residents.

Source: Notaries.BC.ca, “Mutual Wills,” accessed April 29, 2016

Power of attorney abuse | Don’t let it happen to your elder

April 19, 2016/in Power of Attorney /by gartonandharris

A power of attorney is an extremely powerful tool when it comes to estate planning. It can serve, support and protect a person’s very best interests. However, in the wrong hands, a power of attorney can create an obstacle-free pathway to elder financial abuse.

It is safe to say that almost no British Columbia citizen would knowingly place such a powerful tool in the hands of the wrong person, but it can and does happen, unfortunately. When family members suspect the “attorney” has begun abusing his or her authority, it can be devastating for all involved.

It can be hard to spot power of attorney abuse, especially if you are not directly involved in your family member’s financial situations. To help you identify potential abuse, here are a few examples of power of attorney misuse:

— Using the power of attorney for personal gain instead of for the elder’s benefit

— Coercing or forcing an elder into creating a power of attorney

— Forging the elder’s name on a power of attorney, cheques and other documents

— Withdrawing money from financial accounts without permission

— Essentially treating the elder’s money and property as if it belonged to the attorney

One way to circumvent the risks associated with a power of attorney is to impose limitations on the scope of the attorney’s authority. Another option is to make sure the document gives third parties the ability to exercise at least some supervision over the attorney. You should know that a lawyer can help you prepare a power of attorney that will prevent or reduce abuse. If the abuse is already happening, a lawyer may also advise you about how to revoke a power of attorney.

Source: BC Centre for Elder Advocacy and Support, “Abuse of a Power of Attorney,” accessed April 19, 2016

Are you named as estate executor? Know your responsibilities

April 12, 2016/in Estate Administration & Probate /by gartonandharris

For most British Columbia citizens, being named as an estate executor is an honour. Executors take this responsibility seriously and want to do right by the deceased. Unfortunately, the depth of an estate executor’s duties can quickly overwhelm a person. If you have been named as executor or if you are in the process of choosing an executor for your estate, it is a good idea to find out what will be required.

Research is always beneficial. With the plethora of information available on the Internet, it is pretty easy to discover a list of responsibilities or duties an executor must undertake. However, just having a list is not typically enough to prepare the executor. Seeking guidance from a legal professional not only supplements the information discovered through research, it also prepares all involved parties for the overall scope of this important responsibility.

In addition to arranging the funeral and protecting the deceased’s assets, estate administration involves many other tasks that often take executors by surprise, including:

— Identifying the deceased’s assets

— Maintaining communication with beneficiaries

— Managing the estate’s taxes and debts

— Distributing assets to beneficiaries

— Applying for probate, if necessary

Many of the above tasks require a lot of effort on the part of the estate administrator or executor. If he or she is not prepared for the responsibility, it could cause unforeseen problems. A good rule of thumb for those engaged in estate planning is to discuss the role of executor in-depth with the person you wish to name. A good rule of thumb for those already appointed executor is to seek advice from a lawyer.

With planning and forethought, the role of executor need not be fraught with problems. Learn more by browsing the wills and estates section of our website.

Can I make my pet the beneficiary in my will?

April 5, 2016/in Wills /by gartonandharris

It is clear that you love your pet and want to make sure the animal is well cared for if you should die first. Unfortunately, in Canada, pets are considered property and are thus ineligible to be named as a beneficiary. In fact, you cannot even leave your pets gifts in your will and pet trusts are out in Canada as well.

Sometimes, a person’s family will take a pet in after its owner has died. However, for many this is not a viable option. Family members may live far away, or perhaps the pet owner does not have any family to rely on. Even when informal arrangements have been made with someone to care for the pet, it might not be enough to provide peace of mind.

While wills and trusts are out of the picture, you can use estate planning tools to provide for your pet. A good option for many British Columbia citizens is to create a trust appointing a caregiver to take over the responsibility of caring for your pet. In this legal document you can allocate funds to be used in the care of your pet as well. This way, it will not cost your pet’s caregiver any money to assume these duties.

If this sounds like a good solution, you should get together with your lawyer and have the documented drafted as soon as possible. Things to consider include estimating how much the care, grooming and feeding of your pet will cost. You should also factor in regular veterinarian care and funds for any medical emergencies that may arise. You can even include additional funds to compensate your chosen caregiver for his or her time.

To all the pet lovers in British Columbia, take heart, there is a way to make sure your pet survives and thrives after you pass away. Speak with a wills and estates lawyer for additional information.

Source: HighView Financial Group, “Providing for Man’s Best Friend — Pet Trusts,” accessed April 05, 2016

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