FAQ

There are many reasons to appoint a professional, or corporate executor. A few reasons include:

• There are no family members who live nearby, or who have the time and expertise to be Executor.
• There is a child or family member who is physically or mentally challenged, has a substance abuse problem, or who struggles with money.
• Client wishes to treat children unequally under their Will.
• There are family members who do not get along.
• Second marriage situation.
• Protection of child’s inheritance against potential claims.
• A complicated estate.
• Existing chosen Executor is the same age or older than the Testator.

• Estate Administration and tax expertise
• Knowledge of estate and trust law
• Availability
• Financial accountability
• Trustworthiness
• Good judgement
• Impartiality

• Personal liability for mistakes
• Criticism from family members/friends who disapprove of how estate is handled
• Court challenges from family members excluded from or who perceive that they are inadequately provided for under Will
• Conflict of interest where Executor is also beneficiary
• Difficulty in administering estate due to location, lack of time or ability
• Difficulty handling financial matters
• Challenges of providing full and complete accounting to all beneficiaries
• What if they should die during administration of estate………?

• Adequate provision for proper maintenance and support of spouse and children must be
  made.
• This includes common law, same sex partners and adult children.
• If inadequate provision is made, the court can amend the Will.
• This can be of particular concern in a second marriage situation.

There are many reasons to create a testamentary trust through your will upon death. A trust is an arrangement where money is placed in the hand of a trustee to us it for the benefit of someone else.

Testamentary trusts are trusts established in a will. They are often used to create ongoing benefits for spouses, minor and/or adult children and disabled beneficiaries.

A few such circumstances include:

• Capital preservation, spendthrift trust, marriage breakdown
• Minors trust
• Second marriage trust
• Disability trusts
• Insurance trusts

There are many reasons to create an inter vivos trust during your lifetime. A few such circumstances include:

• Same reasons as testamentary trust
• Early estate distributions
• Probate savings and wills variation avoidance
• Family income splitting

• Yes, usually the executor is appointed as trustee to manage estate money to be held for minor children.
• The terms of the trust are spelled out in the Will.
• The trustee pays out income and benefits to look after minor children.
• When the trust ends, the executor (trustee) distributes the remaining estate.

• The law permits a person by will to appoint a guardian of minor children.
• One should consider appointing a different person as guardian than the person selected as executor.
• The executor manages the estate funds, and pays them to the guardian for the child’s benefit.
• If no guardian is named in your will, the courts will select a guardian on your behalf.

• A Will is a legal document that allows you to divide and distribute your assets according to your wishes.
• A Will exercises the legal freedom to leave the Will maker’s estate to people he or she chooses.
• If you die without a Will (intestate), the courts will appoint an administrator to dispose of your assets according to a rigid legal formula. In other words, the law decides how and who will receive your assets regardless of your wishes or the needs of your family.
• That is why a Will is so important. sets out the Will maker’s directions as to who should receive his or her estate upon their death.

Do you:

• Have a spouse or common-law spouse?
• Have any children?
• Have any investments?
• Wish to give money to a friend or charity?
• Own a home or business?
• Wish to pass along family possessions or heirlooms?

Of course, you may have other reasons for requiring a Will and your personal situation will determine this decision.

• A Will must be in writing.
• A Will must be signed by the Will maker, who must be mentally competent and at least sixteen years of age.
• Signing of a Will requires the presence of two adult witnesses, both of whom must sign the Will in the presence of each other and the Will maker.

• An executor is the person(s) or trust company the you appoint to carry out your wishes and settle your estate.
• An executor can be any person who is at least nineteen years of age.
• An executor can be and commonly is a relative or one of the beneficiaries. Spouses usually appoint each other as executor of each other’s estate.
• The executor should be competent, capable of managing business affairs and someone
  trustworthy.
• Duties may include making funeral arrangements, managing investments, paying any taxes and debts owing, filing tax returns and making distributions to beneficiaries.
• In a large or complicated estate, consider the appointment of a trust company as executor.

• The power to administer the estate and carry out duties should be set out in the Will. These powers are often set out in standard form in the Will (legal “boilerplate”).
• The powers usually include the ability to preserve assets, deal with real estate, invest estate money and settle claims against the Will maker’s estate.
• Executor powers should be broad and general.

• The executor’s duties include: arranging a funeral, preservation of property, assembling and selling assets, paying taxes and debts, and distributing the Will maker’s estate as set out in the Will.
• The first duties of the executor are to pay the Will maker’s debts, funeral expenses and any taxes.
• The executor then distributes any special gifts of property and pays out cash legacies, if any.
• Lastly, the executor sets up any trusts and distributes the residue of the estate.

• Residue is the legal term used to describe what is left over in an estate, after payment of all taxes, bills, expenses, and distribution of any specific gifts.
• A residue clause is necessary so that absolutely everything in the estate is properly distributed under the Will.
• Residue usually comprises the largest part of the estate, for example “I leave the rest and residue of my Estate to my spouse …” or “to divide the rest and residue of my Estate equally among my children…”
• Residue can be left to one person or divided into shares or percentages and given to a number of people.

• There are good reasons to have more than one Will at the same time. For instance, if the Will maker owns property in a different jurisdiction it makes sense to set up a second Will that covers the laws in that jurisdiction.
• For large estates, there may be savings possible by organizing the Will maker’s estate in different Wills.

• Couples reflect their common intentions for their combined estates.
• They first leave everything to each other.
• On the death of the last to die, each Will contains identical provisions dividing the estate among their children and/or other beneficiaries.
• After the death of one person, the survivor is free to make a new Will.

• It is now becoming common practice to have an Enduring Power of Attorney prepared at the same time you have a will prepared.
• This means that you can appoint someone to manage your financial affairs in the event that you are unable to.
• You also need to appoint someone to make decisions on your behalf respecting your personal care and consent to treatment if you are unable to do so. This is known as the Advanced Health Care Directive.
• Both appointments may be revoked at any time as long as you have the requisite mental capacity.

• Estate Administration can take anywhere from a year or longer to conclude depending on the complexity of the estate assets and liabilities.
• The executor while dealing with the beneficiaries and estate assets is also required by the Wills, Estates and Succession Act to hold the funds for 210 days after the grant of letters probate before making a distribution.
• The executor deals with Canada Revenue Agency to obtain the necessary clearance certificates and this can also add to the time required in administering the estate.

• Yes. You can name any number of Executors under your Will as long as they are over the age of majority.

• No. There is no estate tax in Canada or Succession Duties in British Columbia. Depending on the size of the estate there may be probate fees to be paid.

• The three important documents are, firstly, the Will to deal with your assets upon your passing.
• Secondly, a Power of Attorney should you wish to allow a corporate trustee or individual to administer your assets, should you wish them to do so at any time, or should you become mentally incapacitated.
• Thirdly, a Representation Agreement, or Advanced Health Care Directive to an individual(s) to attend to your physical care should you not be able to do so due to illness, accident or mental incapacity.