June 2018 - Garton & Harris

Estate administration: Clearance certificates

June 25, 2018/in Estate Administration & Probate /by gartonandharris

Those who have been called to administer the estate of a deceased person should know about clearance certificates. Estate administration in British Columbia means the executor or trustee has been given the duties of making sure certain things take place like the payment of taxes, paying debts and ensuring beneficiaries receive their inheritances. A clearance certificate actually paves the way for an estate administrator to distribute the assets without personal responsibility for any accounts the deceased, trust, estate or corporation may owe to the government.

The Canada Revenue Agency (CRA) gives a clearance certificate in appropriate circumstances to one who legally represents the deceased person’s estate. There are certain instances, however, when a clearance certificate is not needed. For instance, a certificate isn’t needed when a trust or estate continues on to pay income to beneficiaries or if there are enough funds in the estate to pay anything that’s owing to the CRA.

Before filing an application for a clearance certificate, the CRA should be notified that the person has died. A final tax return must also be filed. All amounts owing should be paid.

Things associated with estate administration such as clearance certificates can be confusing and complicated. A lawyer in British Columbia can help with filing the proper forms to the proper place at the right times. The job of an executor or trustee can be time consuming and stressful. A lawyer may be able to ease the complications by helping his or her client in properly administering an estate.

Do you have grounds to contest a will?

June 13, 2018/in Uncategorized /by gartonandharris

Shock, disappointment and confusion may be just a few of the emotions you felt when you learned that your loved one’s will was not what you expected. In fact, perhaps you had seen your parent’s will, and the contents of the will discovered after his or her death was not the same as the one you had read. The sudden and drastic changes in the distribution of your parent’s estate has raised suspicion, and you wonder if you have cause to contest the will in court.

Disputing the contents of a will is a complex and challenging undertaking. After all, your loved one is not present to defend or explain the choices in the will, and the courts tend to assume the will expresses the wishes of the deceased. However, there are some grounds for setting aside the contents of a will.

What will the courts consider?

You may feel that your personal or financial contributions toward your loved one qualify you for a larger inheritance than you received. On the other hand, you may feel that your sibling should receive a smaller share, especially if your parent supported the sibling financially or if the sibling was estranged from the family. Another common situation is when a caregiver inexplicably receives a large portion of the estate.

Any of these or other scenarios may compel you to question the validity of your loved one’s will. However, the courts in British Columbia carefully weigh will challenges using the guidance of the Wills Act. If you choose to dispute your inheritance, the courts will consider these and other questions:

Did your loved one understand the terms of the will he or she signed and willingly agree to those terms?
Did your loved one know and remember the assets included in the will and the relationships of the people named in the document?
Did your loved one suffer from a mental disorder?
Did your parent’s poor health make him or her vulnerable to undue influence?
Are there suspicious circumstances that suggest someone threatened or coerced your loved one into changing the will?

Some of those suspicious circumstances may include someone isolating your loved one from other family members, secretly changing the will or including terms in the will that seem unnatural or disproportionate.

As a child of the deceased, you have a moral claim to the estate of your parent, and the court has guidelines that address disinherited children and spouses. With the assistance of a legal professional, you may be able to reclaim your fair share of the inheritance.

What You Should Know About Representation Agreements

June 11, 2018/in Power of Attorney /by gartonandharris

Power of attorney is commonly referenced when discussing estate matters but it’s a topic that can cause confusion. More often than not, a power of attorney gives another person the authority to act on your behalf regarding financial matters should you become incapacitated.

Like having power of attorney, a representation agreement allows for another person to act on your behalf in the event that you are unable to but instead of or in addition to financial matters, they can make decisions about your health.

What Is A Representation Agreement?

With a representation agreement, you are appointing another person to make, or help you make, decisions regarding your health care and personal care in the event that you are unable to do so yourself. If need be, you may also authorize your representative to handle financial and legal matters on your behalf.

Having a representation agreement in place is a critical aspect of estate planning. No one wants to think about losing the ability to make important decisions but without a plan, your family and friends can be put in a very difficult and stressful situation. Without proper representation, the government may have to become involved in your heath and personal care decisions.

What Are A Representative’s Responsibilities?

A representative is tasked with fulfilling duties regarding your care if you are not able to. When serving as a representative, a person must:

Determine and comply with your current wishes
Act in compliance with the wishes you made when you were capable
Act in a way that reflects your known beliefs and values should your wishes be unknown
If your beliefs and values are unknown, your representative must act in a way that protects your best interests.

Who Can Be A Representative?

Typically, a person will choose a family member or friend to serve as their representative but that isn’t a requirement. A representative must be over 19 years of age and cannot be a paid personal caregiver or an employee of a personal care facility where you live or receive care.

It is possible to appoint more than one representative and either grant both the same authority and designate one as the alternate. It is important to note that a person is under no obligation to serve as a representative and has the right to decline.

What Is The Scope Of A Representation Agreement?

A representation agreement can be revoked provided that a request is submitted in writing. Should a representative become incapable themselves, the agreement will come to an end. In the event of your death, your representative will no longer have the authority to make decisions. Instead, your next of kin or executor will assume responsibility.

Making a representation agreement requires significant knowledge as to how the process works. Given its complexity, it’s best to have the help of a lawyer who has extensive experience handling this type of law. While the hope is to never need a representative, knowing that you have your affairs in order can provide tremendous peace of mind.

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