Archive for the ‘Wills, Estates and Trusts’ Category

Missing Persons. When Can You Deem Someone Has Actually Died?

By
Sometimes, very unfortunately, loved ones go missing. They may never return from a hunting trip, or a hike in the mountains. How can we deal with their assets?

Read the Full Article

Passing of Trustee’s Accounts and the Duty to Account

By
An Executor/Administrator/Trustee (“Personal Representative”), must be ready at all times to account for the trust property.

Read the Full Article

Separate Trusts in Your Will for Each of Your Children: Do You Still Need Them?

By
When we do estate planning for clients with significant value in their estates, we often created spousal trusts for their spouse and separate trusts for each child. 

Read the Full Article

What Is A Life Estate?

By
A life estate is the ownership of property/land for the duration of a person's life.

Read the Full Article

Tax Complications and Your Estate

By
This topic is substantial. This article only touches on one of the issues. Please note that there are potentially numerous tax issues on death and it is very important to discuss these implications with a lawyer and an accountant.

Read the Full Article

Can I Sign My Estate Planning Documents Without Meeting My Lawyer in Person?

By
Many of us take it for granted that we can meet with our lawyer in person to discuss and sign our estate planning documents which often include a will, power of attorney and representation agreement.

Read the Full Article

Joint Executors of an Estate

By
Oftentimes, my clients will appoint joint Executors in their Wills. This means, they are appointing two people to jointly administer their assets and apply for Probate.

Read the Full Article

Digital Assets and Your Will

By
In a world full of social media, online banking and cyber-identities, dealing with digital assets as part of your Will is extremely important.

Read the Full Article

COVID-19 – Do You Have An Up To Date Will?

By
Morbid? Yes. Timely? Yes. A Will is a “back-burner” thing. Life is busy... but all of a sudden, a global health crisis has hit us all.

Read the Full Article

Naming Minor Children as Alternates on your Life Insurance Policy

By
Life insurance is simply good planning. Naming beneficiaries properly is even better planning, and does take careful thought.

Read the Full Article

Who Is Your Executor?

By
Being an Executor is a big job. Be careful who you pick, and make sure that they are willing to do it.

Read the Full Article

Fiduciary Duties of a Power of Attorney

By
The BC Court of Appeal case of Meng Estate v Liem 2019 BCCA 127 confirmed that a person acting under a power of attorney owes a fiduciary duty to the donor.

Read the Full Article

What is the Probate Notice Period… AND Who is Entitled to Notice that Probate is Being Applied For?

By
Rule 25-2 of the Supreme Court Civil Rules requires Notice to be sent to beneficiaries, next of kin, and sometimes others, “at least 21 days” before the Executor files the Probate application materials with the Court.

Read the Full Article

What is the difference between a Power of Attorney and a Representation Agreement?

By
These two, very different incapacity planning documents, are often confused.

Read the Full Article

Administration of an Estate – How Hard Is It?

By
What does “Estate Administration” actually mean? I often get asked this by my clients.

Read the Full Article

Inheriting Property Jointly with other Beneficiaries and the Importance of Co-Ownership Agreements

By
Whenever property is ‘Co-Owned’ by anyone other than a husband and wife, I always strongly recommend that a Co-Ownership Agreement be put in place.

Read the Full Article

Does Natural Death Have to be Reasonably Foreseeable for One to Qualify for Medical Assistance in Dying?

By
I have been following the evolution of medical assistance in dying in Canada since before the Supreme Court of Canada released its reasons for judgment in the Carter decision.

Read the Full Article

Joint Tenants vs. Tenants in Common. What is the Impact on Your Estate Plan?

By
In my initial estate planning meeting with clients, one very important question that I ask is “Do you hold your real estate as joint tenants or tenants in common?”

Read the Full Article

Estate Planning for Blended Families

By
There are a whole new set of challenges when making an estate plan for a blended family.

Read the Full Article

Varying a Will – What Does the Court Look At?

By
When deciding whether to vary a Will, Courts must consider whether the Will makes adequate provision for children and spouses of the deceased.

Read the Full Article

What If a Beneficiary Witnesses a Will? Is their Gift Invalid?

By
The Wills, Estates and Succession Act (“WESA”) states at section 40 and 43 as follows: 40 (1) Signing witnesses to a will-maker’s signature must be 19 years of age or older; (2) A person signing may witness a will even though he or she may receive a gift under it.

Read the Full Article

Executor Duties

By
If you have been appointed Executor in the Will, there are a wide range of obligations if you accept the position of Executor.

Read the Full Article

A Will For Canadian Property and Foreign Property

By
Whenever I have clients that have Canadian property and assets in a foreign jurisdiction, I always recommend that they consult with a lawyer in the jurisdiction where they hold those foreign assets.

Read the Full Article

Should I Draft A Letter of Wishes To My Estate Trustee?

By
When a Trust is established, through a Will or otherwise, it is usually recommended for the Will maker or Settlor to provide the trustees of the Trust with a Letter of Wishes.

Read the Full Article

How Are Wills Located?

By
When a loved one passes away, how do you know if they had a Will?

Read the Full Article

When an Estate Consists of Firearms

By
Hailing from the UK originally, dealing with firearms in an Estate is simply something I did not learn at law school or ever come across in practice over there. In Canada it is far more common.

Read the Full Article

The View – Missing Persons. When Can You Deem Someone Has Actually Died?

By
Sometimes, very unfortunately, loved ones go missing. They may never return from a hunting trip, or a hike in the mountains. How can we deal with their assets?

Read the Full Article

What Happens if a Shareholder Dies?

By
I have a lot of corporate clients. These clients often have small businesses, or sometimes large businesses that they are one of many shareholders in.

Read the Full Article

“Intermeddling” in an Estate – Can An Executor Walk Away?

By
The job of Executor is an onerous one. You cannot be forced to take on the job when you are named Executor.

Read the Full Article

Proper and Improper Use of A Power of Attorney

By
An Attorney appointed to act for another adult under a Power of Attorney has an onerous task.

Read the Full Article

Your Business and Your Will – Shareholders’ Agreements

By
If you have a business with a few shareholders, you may have a Shareholders’ Agreement in place. This forms part of your estate planning whether you like it or not.

Read the Full Article

Philanthropy And Your Will

By
Donations to charity via a Will are a main source of income for many Canadian charities.

Read the Full Article

Questions About Title Insurance – For the Purchaser

By
Title insurance is protection against loss arising from problems connected to the title to your property.

Read the Full Article

Disinherited

By
Unfortunately, spouses separate, children do not get along with their parents and vice versa.

Read the Full Article

A Will – Not Just For the Wealthy

By
“I don’t need a Will, I don’t have anything”……YES YOU DO!

Read the Full Article

How Do I Make Sure My Executor And Trustee Know What I Want Them To Do For My Children?

By
Many people are helping their children financially, both while they are under 19 and often well into their adult years.

Read the Full Article

I don’t want my child’s guardian to suffer financial hardship. What can I do?

By
A worry for most of my clients with young children is appointing a guardian to care for their minor children in the event of their demise.

Read the Full Article

What if I have Assets in BC and Another Province (usually AB) on Death?

By
Whichever jurisdiction you own assets in, an estate grant will be required for those assets in that jurisdiction.

Read the Full Article

Leaving a Letter of Wishes for your Executor or Trustee

By
How will my executor or trustee know how I want them to look after my children or spouse?

Read the Full Article

Digital Assets and Your Will

By
In a world full of social media, online banking and identities, dealing with digital assets as part of your Will is extremely important

Read the Full Article

Who Is Your Executor?

By
Being an Executor is a big job. Be careful who you pick, and make sure that they are willing to do it.

Read the Full Article

What is the Probate Notice Period AND who is Entitled to Notice that Probate is being applied for?

By
Rule 25-2 of the Supreme Court Civil Rules requires Notice to be sent to beneficiaries, next of kin, and sometimes others, “at least 21 days” before the Executor files the Probate application materials with the Court.

Read the Full Article

What is the difference between a Power of Attorney and a Representation Agreement?

By
These two, very different incapacity planning documents, are often confused.

Read the Full Article

Safety Deposit Boxes and Your Estate

By
Should I put my Will in my safety deposit box? That is a frequently asked question by many clients of mine.

Read the Full Article

Powers of Attorney and Your Financial Institution

By
A Power of Attorney, if used carefully, is an important estate planning tool.

Read the Full Article

Abuse of a Power of Attorney

By
When you are appointed as an Attorney pursuant to a Power of Attorney, you are placed in a position of extreme trust.

Read the Full Article

BC Court Weighs in on Wills Variation Standing for Adopted Children

By
In the recent decision, Boer v Mikaloff, the BC Supreme Court was faced with an interesting interpretation question under the relatively new Wills, Estate and Succession Act.

Read the Full Article

How Long Does Probate Of An Estate Take?

By
“How long does Probate take?” isn't an easy question to answer as there are a myriad of factors that can delay or lengthen the Probate process.

Read the Full Article

Estate Planning for your Pets

By
Pets are like family. How do we provide for them after we are gone?

Read the Full Article

Joint Executors of an Estate

By
Oftentimes, my clients will appoint joint Executors in their Wills. This means they are appointing two people to jointly administer their assets and apply for Probate.

Read the Full Article

Insolvent Estates

By
An insolvent estate is not necessarily a bankrupt estate.

Read the Full Article

When Should I Review My Will?

By
If you have an existing Will, that’s a great start. However, as your life changes, so will your estate planning needs.

Read the Full Article

Life Insurance Trust Declarations for Your Spouse and Child

By
Many people have life insurance, and naming a beneficiary or beneficiaries on that life insurance policy is usually enough.

Read the Full Article

Representation Agreements vs. Health Care Directives

By
A Health Care Directive allows you to state your decisions in writing regarding your future healthcare treatments in the event you are unable to communicate them.

Read the Full Article

Curing an “Invalid Will”: Section 58 of WESA

By
WESA sets out certain “formal requirements” for a will to be considered valid.

Read the Full Article

Representation Agreements and the Assisted-Dying Legislation (Bill C-14)

By
A Representation Agreement is a legal planning document which can be used in British Columbia to provide your named representative with the authority to make health care decisions for you if you are unable to do so.

Read the Full Article

How Old Do I Have to be to Make a Will?

By
Everyone should have a valid Will in place. If you die without a Will, your assets may be administered by the Public Trustee and distributed in a manner contrary to your wishes.

Read the Full Article

Advertising for Creditors of an Estate

By
Why is it important that an Executor advertises for creditors of an Estate?

Read the Full Article

Guardianship and Your Will – The Toughest Clause of All

By
Deciding who will take care of your children in the event that you and your spouse perish is by far the toughest decision couples have to make when it comes to deciding to do their Wills.

Read the Full Article

Can A Beneficiary Refuse An Inheritance?

By
Seems unlikely, right? But it does happen – sometimes people don’t want to inherit money for a variety of reasons.

Read the Full Article

The Right to the Spousal Home in an Estate

By
If a person passes away without a Will, there is no longer a life estate granted to the spouse they leave behind in the spousal home.

Read the Full Article

Passing of Trustee’s Accounts and the Duty to Account

By
An Executor/Administrator/Trustee (“Personal Representative”), must be ready at all times to account for the trust property.

Read the Full Article

Don’t Leave Your Estate Planning Until the Last Minute…

By
Part of my practice is attending care homes, hospitals, client’s homes and hospices to prepare for end of life matters – frequently far too close to the client’s end of life.

Read the Full Article

Leaving a Charity the Gift of Life Insurance…

By
Not only does life insurance enable you to benefit a charity after your death, but you can also receive substantial tax savings, depending on how you structure your gift of life insurance.

Read the Full Article

Charitable Gifts Made Under a Power of Attorney

By
A Power of Attorney, if used carefully, is a very important estate planning tool.

Read the Full Article

The Effect of Marriage or Divorce on Your Will

By
The Wills Estates and Succession Act “WESA” is now a year old. Its sweeping changes to the law in relation to Estate Planning and Estate Administration are still being discussed. One important change is the effect that spousal relationships

Read the Full Article

Major Changes To The Income Tax Act: Time To Update Your Estate Plan

By
Back in 2013, the Department of Finance proposed some changes to the Income Tax Act and asked for public input on those proposed changes.

Read the Full Article

What Happens If You Don’t have an Enduring Power of Attorney?

By
When I meet with my clients and explain what happens if they lose capacity and do not have an Enduring Power of Attorney in place, I am frequently met with a look of terror, the colour drains from their face and they say something to the effect of

Read the Full Article

The New Wills Estates and Succession Act “WESA” (which came into force March 31, 2014) and Undue Influence

By
WESA introduced a shift in the onus of proof in relation to undue influence challenges to wills in some cases. Section 52 of WESA places the onus of disproving undue influence to the person who has received the gift under the will

Read the Full Article

The Will That Doesn’t Need Probate

By
“My Friend told me that she has a Will that doesn’t need Probate. Can I get one of those please?” Ahhhhh the Will that doesn’t need Probate! Wouldn’t that be nice? This is something I am frequently asked about by clients

Read the Full Article

The Importance of Opening the Lines of Communication with Your Executor

By
My practice involves both the planning and the administration side of Estates. This gives me a unique insight into how important it is, not only to have an excellent written estate plan (which includes a Will, Trusts, potentially an Affidavit, and the important incapacity planning documents as well, such as a Power of Attorney and […]

Read the Full Article

Executor’s Duties, Post WESA

By
What happens if you are appointed Executor? In British Columbia, the new Wills, Estates and Succession Act (“WESA”), which came into force on March 31, 2014, governs what happens when a person passes away. If you have been appointed Executor in the Will, there are a wide range of obligations if you accept the position […]

Read the Full Article

The New Wills Estates and Success Act “WESA”

By
The substantive law is changing with regard to the presumption of survivorship. WESA contains new survivorship provisions in relation to joint tenancies. There will no longer be a presumption that when people die in circumstances in which it is not possible to determine who died first, the younger is presumed to survive the older (pursuant […]

Read the Full Article

The New “WESA” And The Curative Provisions – Be Careful What Texts You Send Or “Notes” You Write On Napkins!

By
The new Wills, Estates and Succession Act ("WESA") has given the Court a new power to “fix” or “correct” a problem where a Will does not comply with the formal rules of execution. In its broadest interpretation, the Court may consider almost any evidence of a person’s intention and give effect to it as though it is a person’s valid Will.

Read the Full Article

Estate Planning – “Should I Appoint A Professional Executor/Trustee In My Will, Or A Close Family Member/Friend?”

By
An Executor/Trustee has a wide range of obligations and responsibilities to fulfill. When doing your Estate Planning and choosing an Executor/Trustee, you have a number of important considerations to keep in mind. In a nutshell, the choices available are: Corporate Trustee (like a Bank or Trust Company), a family member/friend (or more than one, named as Co-Trustees), or another willing professional you know, such as your Accountant or [...]

Read the Full Article

Assessing Charities: Cause and Outcome

By
Your Estate Planning process is underway. You know that you want to provide for a charity in your Estate Plan, but you have no particular affiliation with any charity. You do, however, have one criteria... you want to make sure that your dollars end up with a charity that uses it in the most efficient manner, making the best use of your hard earned legacy. How do you decipher which charity gets the most dollars to its end beneficiary? [...]

Read the Full Article

Advance Health Care Planning and The Ministry of Health’s “My Voice” Pamphlet

By
I have had several clients bring me a “My Voice” pamphlet for discussion during their estate and incapacity planning appointments with me. These pamphlets were given to them during an assessment they had had with Interior Health. They are full of insightful and valuable information about how to express your wishes for future health care needs, either in the event of ‘disastrous incapacity’ due to an accident, or [...]

Read the Full Article

The Dangers Of Joint Ownership With Your Adult Children

By
Probate fees of 1.4% of the gross value of assets located within British Columbia and passing through an estate in British Columbia are payable to the BC government at the time an estate is probated. In an effort to avoid these fees, people often transfer assets into joint tenancy with one or more of their children. Trying to avoid probate fees may seem like a good idea, but joint ownership can create a whole host of problems for people, as [...]

Read the Full Article

Department Of Finance Consults On Proposed Changes To Taxation Of Trusts

By
In the 2013 Federal Budget, the Department of Finance announced that it was going to consult with the public on proposed changes to the Income Tax Act regarding the taxation of certain trusts and estates.

Read the Full Article

Inheriting Property Jointly With Other Beneficiaries And The Importance Of Co-Ownership Agreements

By
Whenever property is ‘co-owned’ by anyone other than a husband and wife, I always strongly recommend that a Co-Ownership Agreement be put in place. Family cabins at the lake, Big White ski condos, property inherited by estranged beneficiaries and even residential homes where parents are on title with their child/partner in a two-suite home, are all VERY common scenarios where title can potentially be held by several people. These [...]

Read the Full Article

Probate Fees: What Is The Cost And When Are They Payable?

By
British Columbia’s Probate Fee Act sets out the rules for the rate of probate fees payable on a deceased estate and when they must be paid. As a general rule, probate fees are equal to approximately 1.4% of the gross value of a deceased’s estate, calculated as of the date of death, and must be paid before the Court will issue a Grant of Probate. There are some circumstances, however, which reduce the amount of probate fees [...]

Read the Full Article

Joint Tenants vs. Tenants in Common. What Is The Impact On Your Estate Plan?

By
In my initial estate planning meeting with clients, one very important question that I ask is “Do you hold your real estate as joint tenants or tenants in common?” I am often answered with “We are both on the title” which doesn’t really answer my question. The reality is, lots of spouses have owned their principal residence for many years and can’t necessarily remember how they hold title.

Read the Full Article

Estate Planning for the Family Cottage

By
One of the quandaries many people face when making an estate plan is what to do with the family cottage or vacation property. The family cottage is often a beloved family asset – a place where several generations have shared many happy memories – and there is often a strong wish to keep the cottage in the family. The best way to accomplish this is one of the more challenging issues in estate planning.

Read the Full Article

Charitable Donations – What MOTIVATES You To GIVE?

By
What are the Motivators for Charitable Giving? Think about it, what motivates you?Everyone has their own reasons for wanting to make a difference. I have clients all the time who raise charitable giving with me as a desire for their Estate Plan.  No matter how little a client has, “where there is a will there is a way”, so to speak. A client only has to raise this as a desire, and we will find a way to structure it for them [...]

Read the Full Article

Income Splitting Strategies With Family Trusts: Pay Your Children’s Tuition Fees With Tax-Free Money

By
There are many types of income splitting strategies which are used in Canada. All of them are based on the fact that in Canada each person is taxed separately. As a result, there are significant tax savings where income is divided among family members.  It works particularly well with children who are 18 years old or older and are full-time students.  It is possible to put together a strategy where your children’s tuition [...]

Read the Full Article

Executor’s Duties [PDF]

By
What happens if you are appointed Executor?If you have been appointed Executor in a Will there are a wide range of obligations and responsibilities that you must fulfill. However, if you do not wish to act as the Executor, you may decline to do so by renouncing your Executorship and signing the appropriate documents so that the Alternate Executor may act or so that some other person may apply for ‘Letters of Administration’.What [...]

Read the Full Article

Life Planning Considerations

By
Your Will is an essential part of any Estate plan, but it only comes into effect on death. As such,  your Will is not able to address issues that may occur while you are alive, such as appointing representatives to act on your behalf in the event of mental or physical incapacity. Powers of Attorney (POAs), Representation Agreements and Living Wills are all important “Life Planning” tools that are effective while you are [...]

Read the Full Article

Estate Planning And Charitable Gifts

By
Leaving a charitable donation in your Will can be a wonderful way to benefit a charity that has meant a great deal to you during your lifetime. It gives the testator a really ‘feel good’ last word, and an opportunity to say ‘thank you’ for all the great work that charities do for our community.

Read the Full Article

The Importance Of A Will

By
Everyone should have a Will. A Will becomes even more important where you have assets (i.e. own a home, have businesses etc.), have a spouse and/or children. By not having a Will, you effectively lose control over who gets your estate, how much and when. You also give up the right to appoint an executor of your choice to administer your estate as you direct in your Will and you also give up the right to appoint a guardian of your choice for [...]

Read the Full Article

Probate Fee Planning

By
British Columbia is a unique jurisdiction for estate planning because of:probate fees of 1.4% of the gross value of the assets that pass through Estate ($14,000 per million); andthe Wills Variation Act (“WVA”) which allows a spouse or child to apply to vary the Will if they don’t believe “adequate provision” has been made for them in the Will.Because of both of these provincial laws, planners use tools here that [...]

Read the Full Article

How Can A Philanthropic Governance System Help A Family Business?

By
Over 80% of businesses around the world are family owned businesses. Specifically, Canada’s family businesses employ 4.7 million full-time employees and the total annual sales of Canadian family businesses is $1.3 trillion (Source: BDO Dunwoody/ Compass Report on Canadian Family Business; Source: Miller, D. & Le Breton-Miller, I. (2005). Managing for the long run; Boston: Harvard Business School Press.)

Read the Full Article

Ask A Lawyer – Protecting A Vulnerable Parent From Financial Abuse

By
My elderly father seems to be losing his ability to manage his financial affairs. I’m also worried that my step-sister is “borrowing” money from him. Dad doesn’t seem to be keeping records, and he’s always been really careful about keeping things equal between the kids. What can I do to protect Dad, and make sure that he’s not taken advantage of?

Read the Full Article

Some Questions To Get You Thinking About Your Estate Plan…

By
If you don’t already have a Will in place, or if you haven’t looked at your Will for a while, take five minutes to answer a few of these simple questions.  You may be surprised how many of them apply to you……Do you have a Will?If you die without a Will, your assets may be administered by the Public Trustee and distributed in a manner contrary to your wishes.Do you have children?

Read the Full Article

The Supreme Court Of Canada Gives The Final Word On The Residency Of A Trust

By
Last month, the Supreme Court of Canada released its decision in Garron Family Trust v. The Queen (also known as St. Michael Trust Corp. or the Fundy Settlement). The Supreme Court of Canada upheld the decisions of both the Tax Court of Canada and the Federal Court of Appeal that held the residency of the trust is to be determined on the basis of where “its real business is carried on.” Or, in other words, the residency of a [...]

Read the Full Article

Incapacity Planning And Your Health Care

By
A Representation Agreement is a legal planning document which can be used in British Columbia to provide your named representative the authority to make health care decisions for you if you are unable to do so because of mental or physical disability. Living Will language can also be incorporated into a Representation Agreement which provides the named representative the legal right to refuse specific medical treatment or any treatment at all.

Read the Full Article

Thinking Of Buying Property In The US? Consider Ownership Through A Canadian Trust

By
With the strong Canadian dollar and attractively low real estate prices in the US, more and more Canadians are purchasing real estate in the US. Some of the considerations prior to doing so should be the tax implications and whether or not ownership should be through a Canadian trust.

Read the Full Article

Philanthropy And Your Will

By
phi•lan•thro•py is defined in the English Dictionary as “altruistic concern for human welfare and advancement, usually manifested by donations of money, property, or work to needy persons, by endowment of institutions of learning and hospitals, and by generosity to other socially useful purposes.” Donations to charity via a Will are a main source of income for many Canadian charities.

Read the Full Article

Elder Abuse

By
Unfortunately, elder abuse occurs every day in BC. As many as one in two seniors in BC is abused. It is difficult to know when adults are being abused or neglected and often even harder to know exactly if or when to step in. Elder abuse can take many forms, both financial and non-financial. We often assume that adults can take care of themselves, but this may not always be true.

Read the Full Article

Ask A Lawyer – Question: I Haven’t Seen Or Spoken To My Son In Almost Two Years. Can I Exclude Him From My Will?

By
It’s not uncommon for a parent making a Will to want to treat his or her children unequally. Sometimes there are very good reason why one child should receive more (or less) from a parent when that parent dies. Such reasons might include special financial needs (such as if a child has a disability that affects his or her earning ability) or gifts that were made during the parent’s lifetime that are being equalized through the Will.

Read the Full Article