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Your Executor’s Spouse

Friday, February 26th, 2016

I’m not crazy about the spouse/partner of my executor or guardian. Is that a problem?

The simple and probably unsatisfying answer is it depends. In most cases, I wouldn’t worry too much about whether you get along well with the spouse or partner of your executor. The executor’s job is to deal with property. The legal powers of the executor are not meant to be shared with the executor’s significant other. So if you trust your executor to deal responsibly with your money and other property, your dislike of your executor’s spouse is probably not terribly significant.

It’s not like your executor’s spouse can say, “Honey, I know your brother planned on leaving everything to his kids, but I really want to buy a condo in Phoenix.” Well, okay, your executor’s spouse could in fact say that, but presumably your executor is mature enough to know that, as far as the law is concerned, following through on such a proposal would be tantamount to theft.

A concern about the executor’s spouse is often based on a conceptual misunderstanding about what you’re doing when you appoint someone to be your executor. You are not giving your assets to your executor; you are simply entrusting that person to distribute your assets as you have indicated. As such, the executor’s spouse has no ownership interest in, and no legal right to, your property.

However, if your would-be executor’s spouse has a history of theft or fraud, a debilitating gambling problem, a tendency towards domestic violence, or a severe drug addiction that has led to money problems, then that may in fact be a reason to pick a different executor. It wouldn’t be a case of not trusting your executor, but a reasonable fear that your executor’s spouse would steal funds the estate, for example, by having access to your executor’s bank records, cheque book, etc.

Except in such rare circumstances, the spouse of your executor is probably irrelevant. If your executor is trustworthy, and is willing to assume the responsibility of administering your estate, then that’s probably all that really matters.

It’s an entirely different matter if you can’t get along with the spouse of your would-be guardian. A guardian assumes parental responsibility for your children once you have died. That person’s spouse will almost certainly become a parental figure to your children. If you have legitimate concerns about the spouse’s parenting capacity, it probably makes sense to look elsewhere for a guardian.

That being said, you may wish to consider whether you are being too critical of your would-be guardian’s choice of partner. Would this person provide a safe and loving home for your children? If the answer is yes, then a minor personality quirk or two may not be deal-breaker. For most people, the pool of would-be guardians is not terribly large, as people outside of close family are probably not chomping at the bit to raise your kids. I’m not suggesting that you shouldn’t be selective in your choice of guardian, but simply that you shouldn’t expect perfection from your guardian or from the spouse of your guardian.

 

How old should the guardian be?

Monday, January 4th, 2016

At the risk of sounding crass, will the guardian be changing the child’s diapers or will the child be changing the guardian’s diapers? If the latter, the guardian is too old. Having a guardian who is too old makes things difficult for both the guardian and the child. A senior citizen cannot easily take a child to basketball tournaments, help with algebra homework, and enforce curfews. Sure, there are some seniors who would easily be able to handle all of the above, but those are likely a small minority. Practically speaking, if you place a child in the care of a senior citizen, the child will end up being the caregiver of the supposed guardian. You don’t want to put your children through that.

At the lower age range, the guardian must be at least 18. I would rarely recommend placing young children in the care of an 18 year old. However, a 16 year old sibling may in some cases be placed in the care of his older brother or sister.

Where should the guardian live?

Monday, December 28th, 2015

Geographic proximity is extremely desirable in a guardian. While it’s common to think of the world as being a “global village”, human beings are very much constrained by space and time. Children, as much as adults, live in communities and have social connections reaching outside their immediate family members. A child has friends at school, and extra-curricular activities, such as soccer practices, singing lessons, etc. Removing a child from every stabilizing influence in the child’s life at the exact moment that the child has lost his or her parents is in most cases to be avoided.

That being said, I’d probably still opt to place a child with a brother or sister in another city than with a next door neighbour who is a lukewarm friend at best. Family bonds will themselves provide some stability and a sense of continuity. Perhaps above all else, you want your child to be loved. A sibling will almost certainly love your child, but a nearby friend may or may not have that type of connection.

That being said, I would hesitate to move a child to another country where he or she may struggle with the language and the culture. If your closest relatives live in a far off country where English isn’t commonly used, you may want to opt for a nearby friend. I’m no psychologist, but I suspect that a child is more likely to bond with someone he or she can relate to. If the child can’t even have a conversation with his uncle or aunt, real bonding may be difficult.

Who should be the guardian of my children?

Sunday, December 20th, 2015

Unless you’re a horrible parent, this is one of the most important questions you’ll consider when doing your will. This is also, perhaps the most difficult question to answer. After all, I’m a lawyer, not a parenting expert. In fact, decisions regarding guardianship are often based on hard-to-define preferences and gut reactions. It is not uncommon for couples doing wills with me to go through their list of relatives and find something that puts them off about each one. For one relative it may be the boyfriend, girlfriend, husband, or wife that is not terribly liked. For another relative, it may be the person’s age and or relative lack of maturity. For another relative, there may be an issue with the person’s jet setting or perceived hedonistic lifestyle. In another relative’s case, there may be a concern about the person’s lack of financial stability.

One relative may have too few children, and another relative may have too many. One relative may be too religious and another relative is not religious enough. In case I’m coming across as being flippant, I want to assure you that I’m not. These are all valid considerations. Each person is different and each person has a different idea as to what sort of person would make an ideal guardian. In many cases, spouses will disagree about who would make the best guardian.

I would strongly discourage people from holding out for an “ideal” guardian. Just like there is likely no such thing as a perfect parent, there is likely no such thing as an ideal guardian. Rather than looking for the ideal guardian, you should be looking for the best person among the typical candidates.

Who are the typical candidates? Siblings, parents if they are still fairly young and spry, and sometimes incredibly close friends may be considered as possible guardians of your children. Siblings are usually the best candidates. Siblings tend not to be too old or too young. They are also hopefully sufficiently close to you and your children that they would be willing to take on such a burden.

Believe me, looking after someone else’s children forever and ever is a substantial burden. Even if it is not a financial burden, it is still a lifestyle burden. In most cases, this is not a job that people are vying for but an undertaking that someone extremely close to you will grudgingly accept only because that person is extremely close to you. As such, you cannot hope to hold out for the best possible candidate on Earth. What you want is someone who is good enough who will not say, no.

Your parents will rarely say, no, but perhaps they should consider it. Expecting a 70 year old to look after your 6 year old is a lot to ask. In the long run, it may not be good for the 70 year old or the 6 year old. Yes, historically, grandparents have been actively involved in raising children. But in historical times, the average person would start having kids in their mid-teens and die from what would today be a minor bacterial infection by the age of 30. Also, in historical times, a kid would go out and work in the field and be a significant source of economic support for the family. In modern times, a kid is a parasite until his or her mid-20s or beyond. A modern child will not add to the family coffers and will in fact be a significant drain on household finances. Piano lessons and university education don’t come cheap.

A friend may be a fine choice, but this person should be an extremely close and committed friend. Make sure you check with your friend in advance. There is a saying, “You can choose your friends but you can’t choose your family.” There is, of course, another saying, “Blood is thicker than water.” Child guardianship is a lot to expect of a friend.

 

How old should the executor be?

Thursday, December 10th, 2015

In Alberta, the minimum age for an executor is 18 and there is no maximum age. That being said, an executor still going through puberty (for me, I think I was 30) or an executor with firsthand memories of the “Great War” may be too young or too old.

A good executor is often someone your age or younger. The reason for this is simple. You want to maximize the likelihood that your executor will be alive after you have died. If you are still in your 20s, 30s, or 40s, an older executor may not be a problem, but you will eventually want to change your executor if you pick someone older.

Given the desirability of choosing an executor your age or younger, it is easy to see why spouses and adult children typically make good executors. A spouse is often approximately your age. A child is necessarily younger than you, typically by at least two decades.

Where should the executor live?

Wednesday, November 25th, 2015

For starters, an executor should reside on Planet Earth. I have nothing against Klingons, but they don’t make the best executors. Part of that has to do with the desire to rush into battle. Longevity is a worthwhile characteristic in an executor.

So we’ve established that your executor should be an Earthling. Usually, your executor should live in the same country as you. Even better, your executor should live in the same province. The best situation, geographically speaking, occurs when your executor lives in the same city as you.

That’s not always possible, and geography is just one factor to consider when choosing an executor. However, it is an important factor. There are a few reasons for that.

For starters, a nearby executor can more easily deal with your property. He or she can attend local banks, hire a local Realtor, meet with a local estate lawyer, etc. A nearby executor can more easily make a court application to probate your estate. Furthermore, a nearby executor likely speaks the language that is used by the legal system where your property is located. This is particularly important for my clientele, as many of my clients are immigrants.

You’re also less likely to have unexpected tax consequences when you use an executor who resides in the same jurisdiction.

Who should I use as an executor?

Thursday, November 12th, 2015

Let me ask you a personal question. Are you married? Are you seeing anyone? Oh, you’re married. I can’t say I’m not disappointed. I thought we had some real chemistry. I’ll get over it, though. Honestly, I’m happy for you. It’s good to know you’ve found someone special to spend your life with, or at least someone reasonably decent to share the household chores and help with the mortgage payments.

If you’re married, your spouse should probably be your first choice for an executor. If you have adult children, one or more of them should likely be considered for an alternate executor position. If your spouse or child is mentally incapacitated (has dementia, an unstable mental illness, a debilitating brain injury, etc.), then that’s a good reason not to pick that person. If you’re considering separation or divorce, then your spouse may not be the best pick. In most other circumstances, a spouse and adult children (in that order) are excellent choices for the executor role. If you have no children, a sibling may be a good alternate executor. If you are older and have no children, a niece or nephew can make a good alternate executor.

What? You’re actually single? You just said you were married earlier because I was creeping you out? That’s great! Do you want to go for dinner sometime, maybe check out a movie…? What am I saying?! My partner would kill me! Forget that. Let’s just be friends.

For single people, an adult sibling is usually a good choice for an executor. Parents who are reasonably young and spry may be used for a while, but over the long term, a parent, who is likely to die before you, is not the best choice for an executor. For an only child, a close friend may be the best option. For older single people without adult children, a niece or nephew is worth considering as an alternate executor.

How many (alternate) executors should I have?

Thursday, October 15th, 2015

Most people will have a single primary executor and 1 or 2 alternate executors. A primary executor is most commonly a spouse or partner. Someone with minor children may pick a sibling, parent, or even a personal friend, as an alternate executor. A person with adult children will likely pick one or more of those adult children as alternate executors.

Sometimes a person doing a will feels compelled to list several people as executors. The reasons vary. For one person, there may be the sense that being named an executor is a great honour, and that failing to name someone as an executor (even if only as the 19th choice) is a major slap in the face. For another person, there may be the concern that he or she, along with all the executors already listed, may die in a horrific accident or perhaps succumb to a zombie apocalypse. If just one more person is named, that will reduce the likelihood that no one will be around to act as executor.

While it may be an honour to be named as an executor, this is significantly outweighed by the fact that being called upon to act as an executor is a big job and typically a colossal nuisance. In most cases, you want to avoid naming someone as an executor unless that person stands to substantially benefit from the will. An exception exists when you have young children and you appoint someone like a sibling to act as the alternate executor. In that case, the sibling will be willing to act out of a sense of love and family loyalty. In most cases, a person not otherwise benefitting from your estate would be wise to run as fast as he or she can from the prospect of acting as your executor.

As for the person who feels compelled to pick 21 people because 20 might just not be enough, I would point out the following. Unless these people are all a part of your Navy Seal platoon and you’re being sent on a suicide mission in the heart of enemy territory, there’s a good chance that, by picking 2 or 3 people your age or younger, you’ll have at least one person alive to act as your executor. If these people start dying off, you can always rewrite your will at that time. If bad things happen and all of your executors have died, a surviving family member or friend can bring a court application to act as your executor if you have already passed away.

Given the above, I’d typically limit the number of executors (primary and alternate) to 2 or 3. In some cases, there may be good reason to increase the number, but 2 is usually a safe, and 3 is super safe.

If I move, should I change my will?

Sunday, September 20th, 2015

I would love to say yes, because that would mean I’d make more money as a wills lawyer. However, in many cases, a move does not justify redoing your will. If you are simply moving to another part of the city, or to another city within the same province, changing your will is likely unnecessary.

However, if you are moving to another province, especially Ontario or Quebec, you may want to chat with a wills lawyer in that province. In Ontario, probate fees are based on the size of the estate being probated. And the probate fees in Ontario are not cheap. For this reason, people in Ontario will bend over backwards to arrange things so that their assets do not have to be dealt with through the probate process. I don’t want to get into the nitty gritty details, but dual wills, trusts, and joint ownership of assets are common strategies. If you move to Ontario, consult with a lawyer in Ontario.

In Quebec, the legal system is entirely different, based on French civil law rather than on English common law. For that reason, you should definitely meet with a Quebec wills lawyer if you move to that province.

If you move to another country, you should probably also check with a wills lawyer in that country, perhaps even before you move. Even if your will from Alberta is still legally valid in the country you end up moving to, there may be legal and tax issues you should be aware of. For example, the United States has a pretty hefty estate tax. There may be exceptions and loopholes, but you should know what you’re getting into.

You may also want to change your will if your move is prompted by an important change in your life such as marriage or divorce. A change in marital status will almost always justify revisiting your will.

Selling one home and purchasing another within the same province will in some cases warrant modifying your will, but in many or even most cases it will not. If you have specified in your existing will that your former home is to go to a particular person, and you no longer own your old home, that certainly justifies a modification to your will. However, wills are commonly worded more generally, so that a beneficiary will receive a share or percentage of your estate, rather than a specific piece of property. If your will is worded in a general way, such that your former home is not specifically mentioned, you likely don’t need to worry about changing your will.

What name should I use on my will?

Thursday, September 10th, 2015

A simple answer to this question is that you should use your real name. However, not everything in life lends itself to simple answers. It is not uncommon for a person to have a legal name which is entirely different from the name he or she actually goes by.  Your birth certificate and driver’s licence may say “Charles”, but everyone since you were in diapers has called you “Chuck”.

It’s actually very common for people to go by their middle names. Someone who holds herself out to the world as “Mary” may actually be an “Elizabeth” when you look at her passport. Then there’s the odd inexplicable case of a “Clinton” who goes by something like “Scooter”.

To be clear, these are not people living lives of mystery and intrigue in the style of Jason Bourne. They are accountants and soccer moms and Rotary Club members. At least, I assume they are when I’m doing their wills. Maybe some of them are secret operatives with Swiss bank safety deposit boxes storing handguns, massive stacks of unmarked bills, and forged passports. As a lawyer, I sometimes live vicariously through my clients, but I certainly don’t need that kind of excitement in my life.  But I digress.

So what should you do when you go by one name, but your birth certificate lists another? A good rule of thumb is to list all your legal names – first, middle, and last. Sometimes people have multiple middle names, and if that’s the case, list them all. In the case of an alias that is much more commonly known than your actual legal name, you’ll likely want to include that in brackets. For example, a Korean expatriate who goes by “Philip” may be “Youngki (Philip) Lee” for the purposes of his will.

Finally, if you’ve changed your name in the past, you may, in some cases, want to include that information in your will. This may be a good idea, for example, for a woman who has changed her name during marriage, and then perhaps changed her name back to her maiden name following a divorce, and then changed her name again after a second marriage. Some bank accounts and property may still be listed under the former names. You could write something like “Jane Helen Smith (formerly known as Jane Helen Johnson)” in such a case. This may be unnecessary if a person has been known most of his or her adult life by a particular surname, with all property being registered under that surname.

The idea is to be as comprehensive and unambiguous as possible. If you follow the above guidelines, things should go smoothly for your executor and beneficiaries.

Categories : Calgary legal wills