It’s never too soon to think about Estate Planning, but it can be too late.
There are several important documents that may be useful for you, and that become part of an overall Estate Plan. Our Estate Lawyers will provide you with sound legal advice to guide you through the legal issues as you create your Estate Plan, with a focus on creating a treasured Legacy, while minimizing tax consequences and reducing probate fees and other costs.
Most importantly, by investing a few hundred dollars to prepare your legal documents now, your loved will avoid having to spend many thousands of dollars in the future.
Enduring Power of Attorney
An Enduring Power of Attorney allows you to appoint another person, your “Attorney”, to make financial and legal decisions for you. If you become incapacitated without an Enduring Power of Attorney, your loved ones may need to apply to a Court for a Committeeship, which is an expensive and lengthy process.
Your death will be very stressful for your family and friends and dying without a Will may create additional hardship for your loved one. Preparing your Will now allows you to appoint the Executor of your choice and dictate which Beneficiaries get assets in your Estate. This is an important way of minimizing conflict between those you leave behind.
Representation Agreements / Healthcare Agreements
A Representation Agreement can be an all-encompassing document appointing a legal representative to handle legal, financial and healthcare matters, but to ensure your privacy is respected, we encourage clients to rely on the Power of Attorney for non-medical issues and use a Healthcare Agreement to appoint an individual to act on your behalf with respect to personal matters and healthcare, including end of life decisions.
Probating a Will
Probate is the process by which the Court verifies a will is real and valid under B.C. laws.
Probate may be required if:
1. the deceased owned real estate not owned jointly with another party;
2. the agencies and financial institutions that hold assets within the estate require the will to go through a probate before the assets are distributed.
If you are unsure whether or not a will needs to be probated, contact one of our lawyers and discuss the circumstances of your situation with them. Our lawyers can provide you with the answers you need.
An institution such as a pension funds administrator or a bank may require a Representation Grant / Estate Grant to prove that you are the executor named in the will. An application for a Representation Grant is made in the Supreme Court of BC.
The executor of a Will is responsible for carrying out the wishes of a person after they die. The role of the executor is to manage the estate within the terms of the Will and protect the assets of the estate. The basic duties of the executor include the following:
• Notify the beneficiaries - When a person dies, the executor locates the Will and immediately contacts the beneficiaries and any relevant business associates.
• Look after the estate - It is important for the executor to ensure that all assets including property and investments are safe and arrange insurance protection when needed. The immediate needs of the beneficiaries must also be assessed to ensure that they do not suffer any unnecessary financial hardship.
• Value the estate - The executor must identify and account for all assets and liabilities. Each item then requires written confirmation from banks, financial institutions, insurance companies, share registers, titles office and creditors etc. The value of assets must be ascertained, often by obtaining valuations from licensed valuers or estimates from recognized sources.
• Obtain authority to administer the estate - Before an estate can be administered, the executor must apply to the Supreme Court od BC for the authority to deal with the deceased's estate. This is referred to as obtaining ' probate of the Will '.
• Complete income tax returns - Before an estate can be distributed, it is necessary to file taxes for the deceased and the estate and pay all taxes that are due. This means that the executor will have to give details of all income earned during the current financial year and past years, if the deceased failed to file a return. In many cases, the calculation of capital gains tax is involved.
• Pay all debts - Creditors, funeral expenses, income tax, fees for administering the estate and out-of-pocket expenses must all be paid. This often requires the executor to sell some assets. Beneficiaries may choose to provide funds to cover these expenses so as to keep the assets of the estate intact. Be aware that the executor may be held personally liable for these debts if they remain unpaid after the distribution of the estate.
• Divide the estate - When all debts have been paid, the executor is then free to obtain approval from the beneficiaries, heirs-at-law or the court for accounts showing assets, receipts, disbursements, and distribution of the estate.
• Establish trusts - Executors are responsible for setting up trusts for beneficiaries. Trusts are required if the beneficiary is under 18 years of age or mentally incapable, or if there are specific instructions in the Will. Such trusts need ongoing administration, often over many years.
If There is No Will or Executor
If the deceased did not leave a will, certain individuals are eligible to apply for a grant of administration in order to handle the estate. If successful, the person who is named as administrator is legally able to distribute the estate.
A grant of administration can also be used to assign an administrator if:
• The deceased did not name an executor
• The executor has died since the will was made and no alternate executor was named
• The executor gives up the right to apply to the court for probate
Support is only a phone call away. Call us at 604-430-2345, we will help.