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Garton & Harris Wills and Estates Blog

Power of attorney and the abuse of the British Columbia elderly

The elderly are one of the most vulnerable groups in society. It is especially devastating when the individuals who are taking advantage of seniors are the very people seniors most trust. A power of attorney is a very powerful document in British Columbia that grants a great amount of authority to an individual or individuals who are able to make decisions on behalf of the senior who gave them that power.

Anything that is done by an individual with power of attorney that is not in the best interests of the donor can be construed as being abuse. That could mean spending the donor's money frivolously or personally. It could mean forging the donor's signature on documents. But abuse can also take the form of coercion -- forcing someone to create a power of attorney against his or her wishes.

Badly written wills may leave hard feelings in the family

Planning a well-rounded, legally sound estate goes a long way to keeping the peace in the family. By the same token, estate plans in British Columbia with wills that are poorly written and unclear may cause family angst that need not have happened, especially when there is a lot of stake. The last thing anyone would want to have happen is a family pulled apart because of a will.

Sadly, it can and does happen, especially when there are a number of assets involved. But with appropriate legal planning and accounting, a will can be beneficial to all heirs and can maintain the peace. Having an updated, well-written will that will hold up legally is imperative as is communicating what is in that will. Leaving surprises might not bode well with loved ones.

Being an executor involves more than just distributing assets

If you agree to serve as the executor of someone's estate, it means taking on immense responsibility. If a friend or family member appointed you to this position in his or her will, it may be to your benefit to carefully consider whether you wish to take on this role now that the individual has passed away before taking any action that could legally obligate you to carry out an executor's duties.

Distributing property to the heirs and beneficiaries of the deceased is just one of the duties you will undertake. Before making your decision to serve, you may want to know what duties the law here in British Columbia expects you to fulfill. Fortunately, you may enlist help in completing these tasks, but the ultimate responsibility falls to you.

Estate administation: The public guardian and trustee's role

Where there is a will, there is a way. And when the person named in a will to be the executor cannot take on the task of estate administration in British Columbia (nor can an intestate successor or beneficiary or any other person), the province may step in and appoint a public guardian and trustee (PGT) who may do so. This individual would follow the directives in the will.

When a person dies without a will, or intestate, a PGT may step in to administer the estate if there are no family members available. However, a PGT will only consider doing so when there is enough money in the estate to cover funeral costs and to pay for the PGT's services. Those services include anything an executor would have done such as make funeral arrangements, file a final tax return, paying off debts and distributing assets to beneficiaries.

Wills in British Columbia: Choosing the right guardian for kids

It's something parents never want to think about, yet must when doing what's best for their children. Choosing a guardian for minor children in the event of their deaths is a difficult, yet unconditionally loving thing British Columbia parents can do for their kids by way of their wills. Parents want their children to be raised by people they trust and love and who they believe will bring their children up in much the same way they would have done. 

Alarmingly, more than 55 per cent of Canadians don't have a will. It's even more alarming when those individuals have children. It may be because they are putting off choosing a guardian for their children. It's tough to think about, but would be even tougher on the children should their parents die intestate and without naming someone to care for them. The kids could become wards of the state and family members might have to fight for custody. 

Wills: When an executor can't be trusted

When naming people to act in authoritative positions in estate planning, no one is likely to choose someone he or she thinks can't be trusted. But, sometimes even the best laid plans go astray and some executors of wills in British Columbia may turn out to be less than honest. An executor is supposed to put the interests of the estate first, and when that doesn't happen, it can be particularly difficult for beneficiaries.

Being an executor is not for the faint of heart. It takes some know-how and it might be that the person chosen just doesn't know what the position entails. Basically, an executor has three duties: to pay the bills and beneficiaries of the estate, to protect the estate and to have the will probated. 

Many people in Canada admit they don't have wills

An Angus Reid poll this year shows that half of all Canadians don't have a will. People in British Columbia are busy living, and no one wants to think about being incapacitated or about their own deaths. Yet, wills are such an important component of an all-encompassing estate plan in Canada ,and taking the time to write one may save already grieving loved ones even more heartache.

Even many of those Canadians who do have wills confess that they're not up to date. The reasons for either not having a will at all or not keeping a will current is that people are too busy living to think about dying or that they don't have enough assets to make writing a will worthwhile. Canadians who are 55 years of age or older are more inclined to have an up-to-date will, and British Columbia and Quebec -- according to the poll -- are the provinces where a majority of residents do have wills.

The recourse to being left out of wills in British Columbia

Wills can stir up all kinds of emotions, and some of them are not very nice. When British Columbia residents who have expected to be named in wills find that they have been left out, there may be feelings of anger, hurt and resentment. But even though challenging a will can be costly and nerve-wracking, more Canadians are doing so. There is a chance of winning such litigation.

More people have amassed more wealth over the last few years with people living longer. So, more people are challenging wills, questioning the mental capacity of testators (or the people who wrote the wills). Another popular reason for challenging a will is undue influence. Was the testator coerced into leaving out certain individuals? A will can also be challenged on the grounds of improper execution, or perhaps the will wasn't witnessed at all or was witnessed improperly.

Estate administration: Clearance certificates

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.

Do you have grounds to contest a will?

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.

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