April 2017 - Garton & Harris

Choosing an executor for estate administration

April 25, 2017/in Estate Administration & Probate/by gartonandharris

It isn’t always easy to know who to trust. However, hopefully by the time a person is old enough to think seriously about writing a will, one will have ongoing relationships with people who are concerned with one’s best interests. From that pool of people, a person writing a will in British Columbia must choose an executor to take on the onerous task of estate administration.

Not everyone is suited to an obligation of this magnitude, so it is important to choose wisely. Naturally, one will want to select someone who can be completely trusted to do the job fairly and properly. Ideally, that person should be able to get along with the beneficiaries. Interpersonal relationships are also crucial if one is appointing co-executors; two quarrelling siblings may not be the best choice.

Time considerations are very important. Administering an estate can potentially take months, or even years, to complete, depending on the complexity of the estate. The executor will need to have the time to do the job, live close enough to attend to matters efficiently, and should be expected to live long enough to see the job through.

While not always an easy task, estate administration is very important, and to choose an executor is to show great trust and faith in an individual. It may be helpful for the executor to know that he or she does not have to handle the job alone. An experienced British Columbia lawyer can use his or her knowledge of estate law to help at any point during the process.

Source: sunlife.ca, “How to choose an executor“, Susan Yellin, Accessed on April 24, 2017

Is probate always necessary in British Columbia?

April 18, 2017/in Estate Administration & Probate/by gartonandharris

If one is named as executor of an estate, a potentially complex process is about to unfold during one of the most emotional times in anyone’s life. Handling probate and estate administration in British Columbia is not an easy task even at the best of times. If it were possible to largely eliminate the need to probate, it could simplify matters considerably. There are circumstances under which this may be possible.

Probate is the process by which an executor is confirmed by a court to have the authority to administer an estate of a deceased person. While there are many benefits to probating a will, there are some drawbacks, too. For example, once a will passes probate, it becomes part of the public record. If for some reason it is preferable to keep the will private, one may wish not to probate. Probate fees are another reason why many testators try to structure their estate to avoid probate, at least in part.

Any property held jointly, such as real estate or bank accounts, will typically pass directly to the surviving owner and will not require probate. Life insurance policies and registered accounts such as TFSAs and RRSPs, which have named beneficiaries, are not part of an estate, and not subject to probate. Proof of death, typically a death certificate, may be required in all the above situations, but probate is not required.

A careful examination of the will can help determine if probate is necessary. In some cases, it can be avoided completely, while in others it may be possible to omit certain assets from probate. For answers to complex questions about administering an estate, it may be best to speak with a British Columbia lawyer who practices estate law.

Source: Financial Post, “To probate or not to probate“, Leanne Kaufman, Accessed on April 16, 2017

Professional tips for wills and estate planning in BC

April 11, 2017/in Wills/by gartonandharris

Going through life without doing any estate planning is like going on vacation without making reservations. Odds are, upon reaching the final destination without any plans, there will be chaos and frustration trying to sort things out. Wills are the primary tools for dispersing estates in British Columbia, and making an effective will requires careful consideration. For those entering the planning stages, here are some expert tips to remember.

Discussing matters with one’s heirs is a good place to start. If they understand the testator’s situation and intentions, and the testator also understands the needs and desires of his or her heirs, it is far more likely a plan can be made which will not be met with resistance when the time comes to enact it. Blended families may particularly benefit from pre-communication, as they may have more complicated needs and wants.

Choosing an executor is a big step, and it is vital to pick someone with the capability of handling the task properly. It is also important that he or she be willing to take on the responsibility. It may be possible to simplify the executor’s task by preparing a thorough inventory of all one’s assets and debts. Having such a list readily available can greatly ease and shorten the time required for probate.

Do-it-yourself will kits are readily available online or in stores, and are appealing to some. However, a professional will be better prepared to cover all contingencies in a will. The extra investment now could pay dividends for loved ones in the future. A lawyer experienced with wills, and who has a deep understanding of British Columbia estate law, can help prepare a comprehensive plan.

Source: The Huffington Post, “5 Tips To Get Your Estate Plan In Order”, Cindy Crean, April 5, 2017

Conditions under which wills may be contested

April 5, 2017/in Wills/by gartonandharris

As death is inevitable, it only makes sense to plan ahead for when it happens. Wills are the cornerstone of estate planning, and are the most common method used in British Columbia for distributing an estate. In an ideal world, the will passes through probate and administration without a hitch, and everyone tries as best as may be to get through a difficult time. Unfortunately, matters do not always transpire so easily.

One of the most common hindrances to a smooth probate and administration is a challenge to the will. There are a few reasons for which an individual can challenge the will. For example, a person may come forward and assert the testator showed a lack of mental capacity at the signing of the will. If there is evidence to suggest the signor was not of sound mind, which is a legal requirement for making a valid will, a judge could overturn the will, or portions thereof.

Coercion is another basis for contesting a will. It may be perceived that undue influence was exerted over the deceased person, resulting in a bequest that may not otherwise have been included. The judge can assess if there are any suspicious inclusions, or if there is evidence of a person taking advantage of a position of influence over the testator.

Finally, the very wording of the will could be the reason for a challenge. Anything that seems vague or contradictory could invalidate the will. Technicalities, such as no witnesses to the signing, or if the witness or witnesses were too close to the deceased, such as a spouse or other beneficiary, can also be the undoing of a will.

The last thing anyone wants is to leave their heirs confusion and frustration in place of loving gifts. To minimize the risk of a challenge to a will, professional help may be the best option. A British Columbia lawyer who has assisted with the writing of many wills can use his or her experience to help create a document that will hold up to scrutiny when it matters most.

Source: FindLaw Canada, “Contesting or challenging a will“, Accessed on April 1, 2017

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