Estate Planning & Administration
Estate Planning & Administration
Should I Make a Will?
It is never too early to start thinking about and planning for what happens to you and your property after you die. Making a Will will give you peace of mind that your loved ones will know what to do with your property and can help avoid the unfortunate situation of loved ones fighting over your property. No matter the size of your estate, it can help your loved ones organize your affairs after your passing. Navigating this area may be difficult, but you do not have to manage on your own. Our lawyers will advise you to ensure your wishes are properly documented.
What do I do if I am Appointed Executor of a Will?
If you have been appointed as an executor of a family member or friend’s Will, upon their death, you are expected to gather all the assets in the deceased’s estate, pay out their existing debts or liabilities and then distribute the remaining assets in accordance with the Will. The administration of Wills in British Columbia is dictated by the Wills, Estates and Succession Act (“WESA”).
Often, before an executor can take any actions in administering the Will, you will have to apply for probate with the BC Supreme Court. Probate is a process that confirms that a Will is valid and represents the wishes of the deceased and confirms that the executor has the authority to deal with the estate under the Will. Depending on the monetary value of the estate, the court may ask for payment of probate fees. However, not all estates need to go through the probate process, if the estate does not include land or large bank accounts, you may be able to administer the estate without going through the probate application process.
Exercising your duties as an executor can come with personal legal risks and liability. The lawyers at Cote & Evans Trial Lawyers are well versed in the practice of estate administration and can provide you with the knowledge and expertise required to ensure that the administration process is as smooth as possible.
We provide the following services respecting estate administration:
- General advice on the Estate administration process;
- Applying for probate or administration of a Will;
- Assisting with distribution of the estate, including passing accounts and preparing consents for all beneficiaries;
- Assisting with selling real or personal property;
- Liaising with banks, government agencies, accountants and other relevant persons and organizations; and
- Passing the executor’s accounts before the court.
What Happens When Someone Dies without a Will?
When someone dies without having made a Will, the law in BC says that they have died “intestate”, meaning that they have not left instructions on how their property is to be divided. In BC, we have very specific laws that say how someone’s property will be divided, and for the most part, the law in BC says that the deceased’s property will be divided in a way that reflects the relatives that the deceased person leaves behind.
Dealing with a deceased’s estate when they have died intestate can be a complicated matter. For example, if a person dies leaving behind a spouse and children, then what passes to the people left behind will depend on the value of the estate and whether the children are also the children of the surviving spouse. If the deceased’s spouse or children are not available to administer the estate and depending on the size of the estate, it may also be necessary for the estate to be managed by a court appointed administrator. The lawyers at Cote & Evans Trial Lawyers are experienced in guiding those left behind when their loved one has passed without a Will and we encourage you to call us at 778-395-6200.
What if I Become Mentally or Physically Incapable?
Estate planning also involves planning for incapacity, that is, when you are no longer capable of managing your person or property, including your finances. Your health may decline rapidly, and it may give you peace of mind knowing your wishes regarding your health, should you become incapable, are well-managed by someone you trust and that your wishes regarding your health are respected.
There are several documents that you can create to plan for incapacity, such as:
- An Enduring Power of Attorney – which allows you to grant to a trusted adult (or adults) the authority to do anything only you can do in relation to your financial and legal matters. A Power of Attorney will come into effect when you become mentally incapable of making some or all of your personal care decisions. You can revoke a Power of Attorney as long as you are capable of doing so or upon your death.
- A Representation Agreement – which allows you to grant to a trusted adult, the legal authority to make health care or personal care decisions on your behalf if you become mentally or physically incapable of giving consent health or personal care decisions. You can also make a type of Representation Agreement that allows a trusted adult to make financial and legal decisions on your behalf when you are not incapable enough for an Enduring Power of Attorney to take effect but when you wish for someone else to make financial and legal decisions on your behalf.
- An Advance Directive – An Advance Directive sets out your wishes for your healthcare when you are longer able to make such decisions for your self. There are two types of Advance Directives; in one, you choose a trusted adult who you would want making healthcare decisions on your behalf and in the other, you give instructions about the decisions you would want made or you can describe your values and beliefs to guide the decision maker about what you want to happen in a given situation.
It is important to make sure that in the event of incapacity, your wishes relating to your financial and legal affairs, as well as your health and personal care decisions, are well documented and placed in the hands of a trusted relative, friend or professional to manage. The lawyers at Cote & Evans Trial Lawyers are well experienced in the drafting of different types of planning tools to ensure your peace of mind, in the event of incapacity.
What is a Committeeship Application?
In the event that a loved one has become mentally incapable before they have had time to appoint a power of attorney or complete any sort of incapacity planning, you have the option of make a Committeeship application. A Committee can make decisions regarding a person’s medical, personal and/or financial well-being, when that person can no longer make decisions for themselves. A Committee is appointed by a Judge of the BC Supreme Court.
The appointment of a Committee is a serious legal step as it is usually intended to be a last resort and as such, the application process is rigorous, and you must work with the Public Guardian and Trustee in any Committeeship application.
A Committeeship application can be complicated process and the lawyers at Cote & Evans Trial Lawyers are experienced in applying to the courts for Commiteeship applications.
Regrettably, disputes can sometimes arise during a Committeeship application if either family members, the Public Guardian and Trustee and/or the person for whom you are seeking Committee disagree with the application. The lawyers at Cote & Evans Trial Lawyers are experienced in handling these disputes and can guide you through the process.