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Garton & Harris Wills and Estates Blog

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.

What You Should Know About Representation Agreements

Power of attorney is commonly referenced when discussing estate matters but it’s a topic that can cause confusion. More often than not, a power of attorney gives another person the authority to act on your behalf regarding financial matters should you become incapacitated.

Like having power of attorney, a representation agreement allows for another person to act on your behalf in the event that you are unable to but instead of or in addition to financial matters, they can make decisions about your health.

Understanding No CPR Orders

In British Columbia, patients who are nearing the natural end of their lives or suffer from a life-limiting or life threatening illness have the right to create a No Cardiopulmonary Resuscitation (No CPR) form.

The main purpose of the form is to inform first responders and health care providers that in the event of sudden cardiac or pulmonary failure, the patient does not wish to receive CPR or any other form of emergency medical care.

Planning An Estate For A Blended Family

Nowadays, there is no such thing as a ‘typical’ family which is something to be celebrated. Having the freedom to decide how to live with the people you love is a wonderful thing. That being said, navigating estate planning can become increasingly complicated when a testator has previously been married or is part of a blended family.

How can blended families best navigate estate planning in order to ensure that all of their loved ones are cared for? While there isn’t one simple answer, there are certainly options.

Protecting long-term finances with a power of attorney

Aging is inevitable. And one of the wisest, yet most overlooked things British Columbia residents can do to protect their finances as the years march on is to make sure they have a power of attorney in place. It is best to be prepared for the unforeseen, like not being able to make financial decisions due to incapacity or illness and having a document in place that specifies who will have power of attorney in such circumstances.

A will should typically accompany a power of attorney -- the two go hand-in-hand. A person who has power of attorney over someone's affairs can make financial, like withdrawing money from a bank account or making changes to the account, like an address change, for instance. Someone with a power of attorney must act in the best interests of the grantor (the person who makes the power of attorney).  So when a grantor is deciding on who this person should be, he or she will want to choose someone trustworthy, honest and somewhat financially astute. Often this is a spouse or adult child.

What decisions someone make with a medical power of attorney

When people ask others to make decisions on their behalves, they are likely to choose people they trust. Selecting someone to have medical power of attorney (POA) in British Columbia gives that individual the authority to make decisions regarding health care for the person granting the power. In addition to health care, some of the decisions covered by a POA can be about nutrition, housing, hygiene, general safety and even clothing.

Those who intend on having a medical POA should be extremely specific on their instructions in the document. For instance, if the person has a life-threatening illness and is in a life or death situation, he or she should stipulate clearly a do not resuscitate order, if that is what is desired. In addition the document should outline what other medical care is or is not wanted if the writer of it is incapacitated and unable to make those decisions.

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