Category Archives: Wills and Estates

What is a Will? (Estate Planning Terms)

Special words are used by lawyers and judges to describe the estate-planning process and the way it is supervised by judges. To see how estate planning works you need to understand the basic terms and concepts.

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Where Should I Put My Will?

If your will was prepared by a lawyer, finding a place to store it isn’t a problem because lawyers are happy to do that for their clients. But when you make a will yourself you don’t have that option.

Some people think the probate court or a government office should store it for them because a will is an important legal document. Unfortunately, this is a service they do not provide, so you are on your own. Continue reading

What Does an Executor Do?

Writing your will starts with choosing the right executor. After all, it’s your executor’s job to find all your assets, pay all your debts, and distribute what’s left to your beneficiaries to your will. This sounds easy, but unless you have been an executor you do not know what an executor’s job really involves. So who should be your executor? As Tom Carter states in Write Your Legal Will in 3 East Steps, the best way to answer this question is to start with another question, “What does an executor do?” Continue reading

Getting Re-married Later in Life: Some Estate Planning Considerations

 

As people live longer, healthier, more active lives these days, it is not at all unusual to see marriages between individuals in their 60s, 70s and beyond. If you are among these happy folks, it is important that you turn your mind to estate planning. Booking the honeymoon in the Bahamas or working on the guest list is a lot more fun than thinking about your eventual demise, but there are plenty of people in your life who are depending on you to get this right, legally and financially. Continue reading

New Wills Law for BC

UPDATED 2014

At Self-Counsel Press, we take pride in publishing and maintaining Canada’s best resources for legal and financial self-help.

Changes took effect March 31, 2014 in British Columbia law affecting wills, estates and succession. We encourage you to visit the government website outlining the highlights of the legal amendments.

As the site indicates, the new Wills, Estates and Succession Act:

  • Provides more latitude for courts to ensure a deceased person’s last wishes will be respected.
  • Makes it easier to transfer the title of one’s spousal home when one’s spouse dies.
  • Lowers the minimum age at which someone can make a will to 16 from 19.
  • Clarifies the process of inheritance when a person dies without leaving a will.
  • Clarifies property inheritance obligations in the context of Nisga’a and Treaty First Nations lands.
Self-Counsel Press books and kits on these matters are unaffected by these changes. They remain the most definitive do-it-yourself resources available. For a detailed understanding of our list of publications and kits, please visit us further at www.self-counsel.com.

Below is a detailed summary of changes to the act, or visit the government website.


Note that the changes will not make a will written before the Act passed invalid, but it may change how that will is interpreted. For example, gifts to children during a will-maker’s lifetime will not be treated as advances out of the estate under the new law.

General

  • Definition of “spouse” includes anyone in a marriage-like relationship for at least 2 years.

Intestacy (Dying Without a Will)

  • No change where spouse survives without issue (now called “dependants”)
  • If spouse survives with dependants, spouse receives household furnishings and spousal preferential share
  • If all descendants are descendants of the intestate and the surviving spouse the spouse’s preferential share is $300,000
  • If one or more descendants are not descendants of the surviving spouse, the spouse’s preferential share is $150,000
  • After payment of spouse’s preferential share 1⁄2 residue goes to spouse and 1⁄2 is divided among descendants
  • Personal Representative of the intestate is forbidden to dispose of spousal home for 180 days from death of intestate to allow surviving spouse time to decide if he/she wishes to purchase it
  • If no spouse or descendants, all to the intestate’s parents equally
  • If no parents then to descendants of parents
  • If no spouse, descendants, parents or descendants of parents then to grandparents or descendants
  • If no heirs, then to government per Escheat Act as before

Designations of Beneficiaries of Benefit Plans

  • Benefits payable to designated beneficiaries in RRSP and Insurance plans are not part of the estate and not subject to claims of deceased owner’s creditors

Wills

  • Marriage no longer revokes a will
  • Legal age for making a will changed to 16
  • Legal age for witnessing a will is 19
  • Gifts to or appointment as executor of someone who at death of will-maker is no longer a spouse of the will-maker lapse because former spouse is deemed to have died before the will-maker
  • Gifts to children during will-maker’s lifetime are no longer treated as advances out of the estate

Survivorship

  • In common tragedies, the seniority presumption that oldest died first is repealed and replaced with presumption that each died before the other
  • And, when joint tenants die in a common tragedy the property is deemed held in tenancy in common
  • For gifts in a will, a beneficiary who does not survive the will-maker by 5 days is deemed to have died before the will-maker

 

What can Paul Walker, James Gandolfini and Philip Seymour Hoffman teach us about Wills?

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A little update on the story that went live in local papers recently came with the announcement of the most recent of tragic and too-soon passings. Revealed last month was the will of Philip Seymour Hoffman, who shocked the world with his sudden death in February.

In it, he left his fortune to his ex-partner and mother of all three of his children along with explicit instructions on the caretaking of his eldest son.  Though detailed, even down to the cities he’d like his son raised in, he made no mention of his two younger children. 

While is can be surmised simply that Mr. Hoffman failed to update his will since its initial writing, it did raise some questions which I put to our Estate Planning expert Lynne Butler.

In Lynne’s popular book, ESTATE PLANNING THROUGH FAMILY MEETINGS, she addresses the consequences of not planning in Chapter 3, and the reasons why people don’t plan in Chapter 2.  Further to this, and on her well-read blog, she specifically writes, “The problem with his will was that it was written in 2004.” Ms. Butler cites the tabloid knowledge that Mr. Hoffman had recently become estranged from the woman he left his fortune to.

“This raises the question of whether he would have still wanted to leave his estate to her, or whether he would have preferred to leave it in trust to his children” Ms. Butler explained. 

We will never know his intentions, and sadly, his family is left to pick up the pieces of his loss and his fans to mourn his muted voice. 

It does seem like it’s been a very bad time to be a famous person. We’ve witnessed too many untimely deaths lately and yet only a few of the recent famous and sudden passings were followed up with announcements of estates well planned out.

To understand the process of wills writing, I turned to noted author and academic Tom Carter. Mr. Carter is the legal instructor at The School of Business, MacEwan University in Edmonton and the author of WRITE YOUR LEGAL WILL IN 3 EASY STEPS.

Mr. Carter explained the nuts and bolts of wills with this; “Everyone already has a will. They just don’t know it.”

Mr. Carter went on to explain that every province in Canada has general rules for the distribution of your assets, and they typically go in the order of spouse, children, then parents.  If there’s no spouse your assets automatically go to your kids. If there is no spouse or kids, everything you own, and everything you owe, automatically lands on your parents’ doorstep.  

“Each province is different, but that’s the general rule.” Mr. Carter added.

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What we learned from the recent release of Paul Walker’s will, was that he took the time to craft his plan for his daughter, even if he wasn’t there to raise her. 

In a clean and well thought out estate plan, Mr. Walker left his entire estate to his grieving teenage daughter Meadow, and he left the management of those assets and the guidance of his only heir to his parents.   

gandolfini_337-superJumbo-v2

James Gandolfini’s will, on the other hand, left behind a predicament for his grieving children. In his will released in August of last year, just a few months after the actor’s shocking death, Gandolfini indicated different plans for his children from different marriages.

I talked with Emily Bouchard, the San Francisco based co-author of ESTATE PLANNING FOR THE BLENDED FAMILY, and she explained that Gandolfini’s decision was ‘fair but not equal’. 

“To resolve the issue of the disparity between what he left his teenage son from his first wife and what he left his newborn daughter with his widow.” Ms. Bourchard said, “There might be private documents which explain to those children the difference in the estate plan.”

These are the estate planning cases which allow families to get a sense – or very clear direction – on where their loved one wished their assets to go, often during the emotional aftermath of their traumatic loss. However, what can we learn from those who didn’t plan for the worse?

amy-winehouse-that-grape-juice

Both 27 year old Amy Winehouse and 31 year old Cory Monteith died without wills, and in the case of Miss Winehouse, this caused her grieving parents to seek her assets through the court system. 

What does this teach the average person who might not have the sizeable assets of a celebrity?

“Anyone who has assets and anyone who wishes for those assets to go to a loved one when they die, needs a will.” explained Mr. Carter. 

Both Mr. Carter’s, Ms. Butler’s and Ms. Bouchard’s books can be found in major retailer and local bookstores across Canada on right here on the Self-Counsel website.

Probate and Canada Post

We have just learned that Canada Post no longer allows free change of address services for the administrator of a will. So if you are administering the will of someone, you will now need to pay the commercial rate to redirect the deceased person’s mail. This is an expense the administrator can charge back to the estate.

Financial Planning for Older Couples

When you are retired, but still have your physical and mental health, you should take a fresh look at your financial plans, your estate plan and will, and how you and your spouse communicate. Health changes can be sudden in one’s later years, and in bad cases can have a very negative impact on your ability to think through and deal with issues.

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Your Digital Legacy

As our world becomes increasingly digital, it is worth taking a fresh look at the possible consequences of the changes we are witnessing and participating in. As I grow older, I become more aware of the question, “What happens to all this when I die?”

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New Wills Law for Alberta

[Updated] This is a summary of Alberta’s new Wills and Succession Act, which came into force on February 1st 2012. The new Act repeals the Wills Act, Intestate Succession Act, Dependents’ Relief Act,, Survivorship Act, and s. 47 Trustee Act. It also amends the Amends Matrimonial Property Act (MPA) to allow for MPA applications after death of spouse.

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