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Garton & Harris Wills and Estates Blog

Common sense should accompany a power of attorney

Fraud has long been associated with some aspects of estate planning. British Columbia residents who are planning their estates and deciding on someone to look after their power of attorney should take the time to make a prudent decision and choose someone they trust implicitly. A power of attorney is an extremely potent document and the person chosen to act on someone else's behalf, should the person be unable to do so, needs to be someone who can manage a grantor's financial affairs responsibly.

Financial institutions need to ensure the person who is acting on a power of attorney actually has the authority to do so. Banks have the right to refuse a power of attorney for a number of reasons: the document may be outdated, could be unclear or doesn't conform to the bank's policies. They have the right to question any circumstances they believe to appear suspicious.

What does “Probate” mean?

The probate process is when a court declares a will to be valid, and authorizes the named executor to administer the estate. It’s an important step in the estate administration process - but many people may not realize they need to perform this step.

The average person is most likely not familiar with estate laws, as he or she may not have to deal with the loss of life on a daily basis. However, an experienced estate lawyer assists different people with this step regularly, and can provide you with assistance on what happens next after a loved one passes away.

Estate adminstration: RRSPs and RRIFs of a decedent

Taxes are something about which most adults are concerned. It's no different when it comes to estate planning. An individual who has been tasked with estate administration duties in British Columbia needs to have some knowledge of how RRSPs and RRIFs are taxed after a person's death. The values of both are usually included in the amount of assets of the deceased person and subject to taxation, but it's not always that simple.

Much depends upon who the beneficiary is of those RRSPs or RRIFs. Tax can be deferred if a beneficiary is a spouse or common law partner, a child or grandchild who is financially dependent, or a dependent child or grandchild who has a physical or mental infirmity. There are conditions that apply in these instances.

Wills: Should British Columbia residents go it alone?

It may be very appealing for one to think about writing one's own will. But there are many reasons it might not be the best idea. When it comes to writing wills in British Columbia, there are laws to which a testator must adhere and not being aware of what those are could render a will null and void, which is something no individual wants to have happen.

There are two main types of wills: a holographic, or handwritten will, and a formal will.  British Columbia, however, is one of the provinces that doesn't recognize holographic wills. Formal wills are typewritten and people can do it themselves, although inadvisable since DIY will kits are meant to be one size fits all. Wills should be tailored to a person's individual circumstances and what works for one person may not work for another.

Estate administration for single British Columbia residents

Everyone needs estate planning documents. Single British Columbia residents should also have wills and other estate planning documents, but when it comes to choosing an individual for estate administration duties, a single person without children may wonder who to choose for that task. When other family members are too busy with their own lives to take on the task, a single person does have other options.

There are people who can be hired to help in writing estate planning documents and to administer an estate when the time comes. British Columbia residents in these positions can take advantage of trust companies and of representation agreements. A lawyer with whom an individual has a good relationship may also be a wise choice. 

Estate administration: Dealing with an insolvent estate

Being named as a beneficiary of some estates may not exactly be a windfall. During the estate administration process it may be found that some British Columbia estates are actually insolvent. In other words, they have more debts associated with them than assets and that can pose problems for beneficiaries and executors who should be aware of what to do and what not to do in such cases.

During the administration of an insolvent estate, an executor has to be very mindful about which expenses need to be paid out of the estate. Insolvent estates can be nightmares for executors, so before agreeing to become an executor of an estate, an individual shouldn't shy away from asking a testator some pointed questions before agreeing to the task. Once an executor begins accessing information regarding a testator's account, he or she must accept the challenge of administering the estate. In other words, he or she can no longer say no to the job.

What British Columbians should do when left out of wills

There may be nothing more disturbing or emotionally upsetting to someone than being left out of a loved one's will, other than the loved one's passing. For British Columbia residents who believe they've somehow been slighted in regard to wills, there is some recourse, but time is of the essence. In many cases, anyone who contests a will must show that there was either something wrong with the testator's mental capacity or that the testator was coerced when writing the will or that the will is altogether fraudulent.

Only family members have the right to contest a will and it doesn't always come without cost. If a testator talked with a loved one about being included in a will and was then left out, that person must try to write down as much as possible he or she can remember from the conversation(s) and try to estimate, based on the value of the estate, how much he or she believes is owed. The person may wish to consult with a lawyer to see what his or her options might be.

Wills aren't just for the well-to-do -- they're for everyone

Estate planning may often be driven less by what an individual has and more in regard for loved ones left behind. Some British Columbia residents may be under the assumption that because they don't have many assets they don't need to have wills. Professionals in estate planning say this isn't the case.

It is especially important for parents to have a will. Who will become the guardian of any minor children should something happen to the parents? These types of things are spelled out in wills. Although it is not essential that wills be prepared by lawyers, it is not a wise decision to go it alone since DIY wills can come with a host of issues. Lawyers' fees are insignificant when compared to costs of having to go to court to sort out homemade wills. 

Essential aspects that should be included in all wills

In the busy-ness of life, most people don't really think about their lives coming to an end, especially younger people. But when it comes to estate planning and wills, British Columbia residents really should pause and consider what it would mean to their loved ones if they died without leaving appropriate documents, especially if they have younger children. Creating a will and keeping it current really isn't all that daunting, especially when legal help is available. 

When writing a will, a power of attorney should always be included. This allows someone to act on behalf of the testator when he or she can no longer do so. One speaks to financial aspects of a person's life, and the other deals with personal issues like health care, while a will properly addresses what happens to the testator's estate upon death. There are essential components of a will that need to be addressed, such as who will care for any minor children in the event of the testator's death (usually a spouse if there is one) and who will be the executor of the estate.

Power of attorney: Common sense should prevail

Canadians who choose someone to act on their behalf financially when they can no longer do so need to make the choice wisely. In choosing a person to act on a power of attorney, British Columbia residents will want to make sure the person is trustworthy and has some financial common sense. Fraud is a reality in some situations, so it's important to give this power wisely.

When it comes to banking institutions, they want to know if a person acting on another's behalf has the authority to do so. Powers of attorney can actually be refused by banks if documents presented are out of date, aren't clear or don't conform to banking policies. So, these documents must be kept up to date. Experts say when it comes to a power of attorney, banks should operate on a balance of caution and common sense.

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