Archive for the ‘Wills, Estates and Trusts’ Category

Pushor Mitchell Participates In Estate Planning Event with Matte & Associates Financial Solutions and Springfield Funeral Home

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Pushor Mitchell is co-hosting a free seminar on Estate Planning with Matte & Associates Financial Solutions and Springfield Funeral Home on Tuesday October 17, 2023, with lawyer Mark Brade speaking about the legal issues to a smoother path to inheritance.

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

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When a trust is established, through a will or other mechanism, it’s often advised for the person who made the will to provide the trustees with a ‘letter of wishes’, also known as a memorandum of wishes.

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Risks Of Joint Tenancy With A Child

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In estate planning there can be benefits to adding an adult child to title of a home, but there are serious risks or drawbacks as well.

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Can I Make An Uneven Distribution Between My Children In My Will?

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If you are wanting to treat your children differently in your Will, it is fundamental to consult with a lawyer.

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How Do I Find Out If Someone Has A Will? Where Are Wills Registered/Located?

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When a loved one passes away, do you know if they had a Will? And second, do you know where to find a copy of it ?

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Missing Persons. When Can You Deem That Someone Has Actually died?

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Sometimes, very unfortunately, loved ones go missing, and it is a complicated issue to deem if someone has actually died.

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Challenging A Will Before The Will Maker’s Death

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A recent Ontario Court of Appeals case confirmed that a relative of a Will Maker cannot challenge their relative’s Will prior to their relative’s death. 

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Testamentary Capacity And Estate Planning

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Testamentary Capacity and Estate Planning is an important consideration in the process of updating Wills.

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New Year, New Will – Looking Ahead To 2023

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The New Year is a great time to review your Will.

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Simplifying Your Will

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If you have Wills that provide for a number of testamentary trusts for spouse and children (and grandchildren), you may want to have them reviewed to see if there is any advantage to maintaining all of those separate trusts.

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A Will For Canadian Property And Foreign Property

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If a client has Canadian property and assets in a foreign jurisdiction, it is recommended that they consult with a lawyer in the jurisdiction where they hold those foreign assets.

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

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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 with regard to the administration of the Trust and how they would like things to be handled.

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Estate Planning and Charitable Gifts

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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.

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When Should I Re-Do My Will?

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

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Executor’s Duty to Communicate

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Executors have many duties to the beneficiaries of an estate - they must act in good faith, to the standard of a reasonably competent person, keep an even hand between the beneficiaries, protect the assets, and make sure the taxes and debts are paid.

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What Do I Need? The Elements of an Estate Plan

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There are 3 “main” documents a client should consider when making an estate plan - a Will, Power of Attorney, and Representation Agreement.

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New Year, New Will

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The New Year is a great time to review your Will. If you have an existing Will, that’s a great start. However, as your life changes, so will your Estate Planning needs.

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Safety Deposit Boxes and Your Estate

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

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How can a Philanthropic Governance System help a Family Business?

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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.

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Powers of Attorney and Your Financial Institution

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A Power of Attorney, if used carefully, is an important estate planning tool. This legal document is commonly prepared to provide for situations where a person cannot manage his or her own affairs.

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Estate Planning – Corporate Considerations

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There are a number of important considerations which arise where an estate planning client holds shares in a company including legal, tax and financial considerations.

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Estate Planning and Charitable Gifts

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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.

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An Intersection Between Family Law and Estate Law: Who is my Spouse Anyway?

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This article is the first in a series about the intersection of family law and estate planning.

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Tips for Executors

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

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Incapacity Planning And Your Health Care

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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.

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Estate Planning – “Should I Appoint a Professional Executor/Trustee in my Will, or a Close Family Member/Friend?”

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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.

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How Are Wills Located?

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When a loved one passes away, how do you know if they had a Will? Many people – even those close to us – can be very “cloak and dagger” about finances and personal matters.

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

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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?

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Passing of Trustee’s Accounts and the Duty to Account

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

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

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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. 

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What Is A Life Estate?

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

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Tax Complications and Your Estate

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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.

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

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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.

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Joint Executors of an Estate

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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.

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Digital Assets and Your Will

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

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

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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.

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Naming Minor Children as Alternates on your Life Insurance Policy

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

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Who Is Your Executor?

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

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

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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.

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

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

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Administration of an Estate – How Hard Is It?

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

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

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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.

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

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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.

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

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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?”

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Estate Planning for Blended Families

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

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Varying a Will – What Does the Court Look At?

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

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

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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.

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Executor Duties

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

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A Will For Canadian Property and Foreign Property

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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.

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

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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.

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How Are Wills Located?

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

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When an Estate Consists of Firearms

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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.

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

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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?

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What Happens if a Shareholder Dies?

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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.

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

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

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Proper and Improper Use of A Power of Attorney

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

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Your Business and Your Will – Shareholders’ Agreements

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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.

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Philanthropy And Your Will

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

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Questions About Title Insurance – For the Purchaser

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

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Disinherited

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

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A Will – Not Just For the Wealthy

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

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

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

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

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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.

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

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

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Leaving a Letter of Wishes for your Executor or Trustee

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

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Digital Assets and Your Will

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

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Who Is Your Executor?

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

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

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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.

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

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

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Safety Deposit Boxes and Your Estate

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

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Abuse of a Power of Attorney

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

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BC Court Weighs in on Wills Variation Standing for Adopted Children

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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.

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How Long Does Probate Of An Estate Take?

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“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.

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Estate Planning for your Pets

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

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Joint Executors of an Estate

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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.

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Insolvent Estates

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An insolvent estate is not necessarily a bankrupt estate.

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When Should I Review My Will?

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

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Life Insurance Trust Declarations for Your Spouse and Child

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

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Representation Agreements vs. Health Care Directives

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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.

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Curing an “Invalid Will”: Section 58 of WESA

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

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

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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.

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

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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.

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Advertising for Creditors of an Estate

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

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Guardianship and Your Will – The Toughest Clause of All

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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.

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Can A Beneficiary Refuse An Inheritance?

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

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The Right to the Spousal Home in an Estate

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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.

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Passing of Trustee’s Accounts and the Duty to Account

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

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

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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.

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Leaving a Charity the Gift of Life Insurance…

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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.

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Charitable Gifts Made Under a Power of Attorney

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

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The Effect of Marriage or Divorce on Your Will

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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

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

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

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

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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

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

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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

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The Will That Doesn’t Need Probate

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“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

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The Importance of Opening the Lines of Communication with Your Executor

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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 […]

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Executor’s Duties, Post WESA

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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 […]

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The New Wills Estates and Success Act “WESA”

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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 […]

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

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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.

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

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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 [...]

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