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New Westminster Estates Law Blog

Using wills and other documents to preserve a legacy

While much of the estate planning advice available today focuses on finances, there is a lot more to legacy planning than just passing along a house or some bank accounts. Legacy planning can often go beyond the financial and legal aspects of drafting wills and naming executors. Here are some of the things British Columbia adults should consider while making a plan for the future of their family.

One of the things many people forget to plan for is the preservation of their life story and lessons, many of which will have immeasurable value to their descendants. It may be helpful for people to use a notebook or video to record final thoughts. These do not have to be emotional per se; preserving family history and traditions such as old recipes can ensure important knowledge is not lost with the passing of one generation.

Undue influence- brother taking advantage of mother

Mom is showing her age, becoming more frail and not as with it as she used to be.  Your brother has returned home to live with mom or has never left home.  He doesn't work or works very little.  Mom seems to rely on him quite a bit.  When you phone your mom, brother answers and makes excuses as to why mom can't talk to you.  Mom is hospitalized and brother is named as her representative.  You want to visit but brother tells staff not to allow it.  Mom deteriorates and dies.  You then find out that mom's house and bank accounts were in joint tenancy with brother and since her death, he has had them transferred into his name only.  Also, mom has changed her will to make your brother the sole beneficiary.

The top 2 mistakes people make in their wills and estates

There are a number of things to consider when drafting an estate plan. It is not uncommon for people to become overwhelmed by the process and wonder if they are doing things wrong. Fortunately, legal counsel can typically spot and fix any issues in British Columbia wills as long as they are caught in time. Here are two of the most common mistakes professionals encounter when it comes to wills and estates.

The first and most damaging mistake is procrastinating on a will and not drafting one at all. It is understandably uncomfortable to think about death, especially when money and family concerns are mixed in as is the case with estate planning. But not putting affairs in order can leave a true mess for next of kin to clean up. In some cases it can lead to serious conflict between family members; in others, forgotten assets can be lost.

What is the difference between wills and powers of attorney?

There are many legal complexities to estate planning and preparing a will. However, before digging into details and exceptions under British Columbia law, it is a good idea for individuals to understand the two central documents needed for a plan. Wills and powers of attorney are the two cornerstones of estate planning. To be valid, both documents should be drafted by a competent adult with the support of an attorney.

Wills are documents in which people record who should receive their assets and liabilities after they pass away. The people or organizations who receive assets are called beneficiaries. The person responsible for administering the will is an executor. Approximately 50 percent of adults in Canada die without a will each year, a reality that leaves many families in a bind as they seek to manage their loved ones' affairs. 

What Executors Need To Know

Someone you love and respect has asked you to be their executor. They, the testator, trust you to handle their estate once they’re gone and to ensure that their final wishes are respected. It may feel like an honour, and it often is, but there is a lot more to estate administration than meets the eye.

Before you say yes, take some time to consider the implications and assess whether or not you are prepared to take on the role. When it comes to estate administration, knowledge is key and educating yourself can save you from considerable stress down the road.

Separation agreements may impact wills for divorcees

Most people assume that an ex-spouse will have no right to their estate once a divorce is finalized, but this is not always the case. Depending on the separation agreement, a spouse may be able to make a claim support on assets from their former partner's estate. It is a good idea for British Columbia individuals to clarify how estates will be handled when drafting a separation agreement and to update wills to reflect the new arrangement.

Often, a person can make a claim against a late ex-spouse's estate. This can be a way of compensating for agreed-upon alimony or obtaining retirement income. This can become legally challenging, particularly if the person does not leave a large number of assets or if the individual has financial obligations and dependants outside of the ex-spouse.

Cohabiting can have unintended consequences

You have met someone you really like and the romance is blossoming. Your kids are happy for you as you have been so lonely since your spouse died. All is going well but don't forget that there is a timer ticking on your relationship. In B.C. if you live in a marriage-like relationship for two years, then you may be considered to be "spouses" under the new B.C. Wills, Estates and Succession Act (WESA). This means should you die, your "spouse" would be entitled to make a claim on your estate if you have no Will and if you do have a Will, your "spouse" can apply to the court to vary the will in their favour.

Why you should estate plan ASAP

No one enjoys thinking about their death, but it might be more necessary than you think. Have you thought about what will happen to your family after you are no longer there to provide for them? Do you know how your estate and assets will be distributed among your family? Do you know who will make important decisions about you and your family when you no longer can?

These are all valid questions that can be answered with estate planning. You might think estate planning is something old people do right before they die, but in reality, estate planning as soon as possible is a good idea.

Mom always liked you best

Tommy Smothers used to say to his brother, "Mom always liked you best." As between brothers, jealousy for the affection of parents is common. But what if Mom likes her church or a charity more than you. This is a problem when parents leave their estates to charities rather than their own children. Two BC Court of Appeal cases have tackled this issue.

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