Having an estate plan, which includes a properly drafted will, allows you to:
- select an executor to manage your estate affairs;
- control how your assets will be distributed after death;
- select a guardian for your minor children; and
- establish trusts for beneficiaries with disabilities or special needs.
If you die without a will, the provincial legislation will dictate how your assets are distributed. This legislative scheme may be at odds with your true wishes.
In addition to a well-drafted will, estate planning includes other tools such as a power of attorney and a representation agreement.
Powers of Attorney
This document allows you to appoint an individual to act on your behalf in relation to financial and legal decisions. Having a power of attorney in place ensures that your financial and legal affairs will be managed by a person of your choosing if you are rendered incapable as a result of illness, injury or disability.
This document permits you to appoint a representative to make decisions on your behalf regarding health care and personal care pursuant to the terms of the Representation Agreement Act. A representation agreement permits you to outline your wishes with respect to certain care decisions and it allows you to ensure that your health care needs are properly addressed even if you lose capacity.
We can assist you by preparing comprehensive estate plan to address your specific needs.
Probate Applications and Estate Administration
Estate administration involves gathering the assets of the estate, satisfying outstanding debts and distributing the remaining assets according to the terms of the will or according to provincial legislation.
In most cases, in order to complete estate administration duties, you must obtain a grant of probate or a grant of administration from the Court appointing you as the personal representative of the Deceased.
One of the primary duties of the personal representative is to ensure that the property of the Deceased is protected and insured. You should verify that all existing insurance policies are adequate and sufficient (e.g. if the residence of the Deceased is vacant, the insurance may have to be changed) and that all valuables (e.g. jewellery, vehicles and personal documents) are properly stored and insured.
The personal representative also has a variety of other duties, including:
- accounting to beneficiaries;
- filing a final tax return on behalf of Deceased and filing Estate returns;
- notifying creditors;
- cancelling credit cards and subscriptions; and
- informing government agencies (e.g. Canada Pension Plan) of the death.
Consulting a lawyer early in the estate administration process ensures that the administration proceeds in an efficient fashion. If you are named as executor in a will, we can assist you in obtaining probate and advise you on every aspect of the administration of the estate. Similarly, if you wish to apply to be appointed as the representative of a person who died without a will, we can prepare this application as well.
In BC, wills and estates are governed by the Wills, Estates and Succession Act (“WESA”). This legislation allows children or a spouse of the deceased to challenge the terms of a will in certain circumstances. However, WESA also establishes strict time limitations for disputing the terms of a will. Therefore, it is important to seek legal advice early to ensure that you do not miss a critical limitation date. Please contact us to discuss your options.
Adult Guardianship / Committee Applications
A committee is a person appointed by the Court to act as a guardian for an adult who is incapable of managing his or her own affairs. There are two types of committee: (1) committee of the person (for personal and healthcare decisions); and (2) committee of the estate (for financial and legal decisions). In order to apply to the Court for a committee order, the adult must be declared mentally incapable by two physicians.
Committees have a fiduciary obligation to the adult they are assisting and are required to maintain detailed accounts in relation to the adult’s assets. At Taylor Pelton, we can draft the committee application and associated affidavits on your behalf. We can also advise you with respect to the duties of a committee.