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How to Choose an Executor

Tuesday, August 4th, 2015

In a will, an executor has a tremendously important job. Sometimes an executor is called an executrix (if female), a trustee, or a personal representative. Regardless of the title used, the job of the executor is to make sure that the instructions set out in your will are followed.

If you’re buying a home and asking a Realtor what is important to consider, he or she may respond by saying, “Location, location, location!” In choosing an executor, my advice would be quite similar. My preferred considerations in choosing an executor are location, relation, and cooperation.

Let’s consider the first part of the triad – location. It matters a great deal where the executor lives. If he or she lives near you and your assets, it will likely be relatively easy for your executor to act for your estate when necessary. However, if your executor of a will lives in another city, province, or country, it will be somewhat more difficult for your executor to do all the things that may be required of him or her, such as selling off your assets for fair market value, interacting with your bank, contacting your creditors, and applying to the local court to probate your estate. While location isn’t everything when choosing an executor, it is a very important consideration.

The second item in the triad is relation. In Canada, an executor is typically someone who is closely related to you. In most cases, spouses and adult children are the best choices for executors. For single people without children, siblings are often good choices. You typically want to pick someone who is close to you and willing to take on the responsibility, someone who is around your age or even younger, and, in many cases, someone who will otherwise benefit from the estate. If your spouse or adult child is already a primary beneficiary of your estate, it makes a lot of sense to consider appointing that person as an executor as well.

The last thing to consider is cooperation. First of all, is the person you’re considering even willing to take on the responsibility? If the answer is yes, will this person be willing to follow the instructions you have set out in your will? If the answer is also yes, will your choice for executor be able to get along with the other beneficiaries. A cooperative person who will happily follow the provisions of your will is likely a good candidate.

So remember, when choosing an executor, think location, relation, and cooperation!

Donating Organs in Alberta

Wednesday, July 29th, 2015

When preparing personal directives for clients, I always ask whether they are interested in being organ donors. While not for everyone, being an organ donor means that you are willing to give a very special gift to someone you have never met. You can be certain that this gift will either save a person’s life or significantly improve a person’s life. In some cases, a single donor can save or improve several lives at once.

 

A very positive development in recent months is the Alberta Government’s creation on an organ and tissue donor registry. There are two ways that a person can register as an organ and tissue donor. The first way is to indicate your preference to be a donor when you go to renew your driver’s licence at an Alberta Registries office. The second way to register is to Google something like Alberta organ donor registry. Likely the first thing to come up will be the Alberta organ and tissue donation registry page. All you’ll need is your Alberta Health number. Once you have completed the online form a PDF documented will be generated. You will then print this off, sign it with a witness (no need for notarization), and mail it in to the Alberta Health address listed on the document. That’s it. That’s all you have to do to save lives.

 

The online form asks some specific questions about your preferences. Probably the most common preference is to donate all available organs and tissues for the purposes of transplantation. Some people may wish to only donate certain organs or tissues, and you can indicate those preferences on the form.

 

Other people may even wish to donate their bodies for scientific research or to assist with the education of medical students. You can indicate those preferences as well. That being said, if you wish to leave your body for scientific research or medical education, you should also contact either the University of Calgary body donation program or the University of Alberta anatomical gifts program. I have been advised by a representative of the University of Calgary program that they have other forms for would-be donors to fill out that are in addition to the Alberta Government’s online donor registry form.

 

If you would like to donate your organs and tissues, visit: https://myhealth.alberta.ca/pages/otdrhome.aspx

 

If you are interested in donating your body to the University of Calgary body donation program, please visit: http://www.ucalgary.ca/bodydonation/

 

If you are interested in donating your body to the University of Alberta anatomical gifts program, please visit: http://surgery.med.ualberta.ca/AboutUs/Divisions/anatomy/anatomicalgifts/Pages/default.aspx

 

 

Estate Planning Canada

In Alberta, from a legal point of view a gay or lesbian couple is the same as a heterosexual couple. A more relevant factor may be whether or not the couple has children. A childless couple will often want to appoint adult nieces and nephews, or even younger adult friends, as alternate executors for the wills, alternate attorneys for the powers of attorney, and alternate representatives for the personal directives. On the other hand, a couple with adult children will typically appoint one or more of the children as alternate representatives.

 

Some jurisdictions allow for joint wills. However, my practice is to prepare two wills, one for each spouse. I think joint wills have too many drawbacks. In particular, a husband and wife’s wishes are not always in line. For example, the husband may wish for one of his siblings to be his alternate executor, and the wife may wish for one of her siblings to be her alternate executor. In all likelihood, one spouse will predecease the other, rather than both dying at the same time. Since a joint will may be probated for the spouse who dies first, the second spouse would then likely have to do another will anyway.

 

Yes, purchasing US property may subject you to US estate tax. Also, if you live in the US for a significant period of time or acquire US citizenship, you may be subject to US estate tax. I would recommend speaking with a US tax lawyer before you consider purchasing US property, living in the US, or applying for US citizenship.

 

It is a good idea to have a clause in your will that is sometimes morbidly referred to as a “wipe-out clause”. A wipe-out clause stipulates beneficiaries in the event that your immediate family members have all died. Typically, a wipe-out clause will leave assets to parents, siblings, and/or nieces and nephews. In some cases, wipe-out clauses will leave assets to friends or charities.

 

In such a circumstance, the rules that would apply to a person who died intestate (without a will) would apply. There are likely surviving family members who are still eligible to receive assets under intestate succession legislation, even if these people are distant relatives.

A will distributes your assets to others after you have died. A power of attorney, on the other hand, appoints a representative to manage your assets and finances while you are still alive. The representative appointed under a power of attorney has a fiduciary duty to the person who has appointed him or her. A fiduciary duty means that the representative (the attorney) must act in utmost good faith and exercise his or her powers in the best interests of the person who appointed the representative. The attorney is not entitled to get rich off of the assets of the donor (the person who appointed the attorney). In fact, in most cases, the attorney has to keep detailed records of any money spent on the donor’s behalf, and may later be called upon to justify any expenses incurred. Contact Russ Weninger for legal guidance Calgary.

Can you do a living will in Alberta?

Monday, December 9th, 2013

 

In Alberta, the legal term used for this is a personal directive. Personal directives are an important part of the “estate planning” process. In a personal directive, you typically appoint one or more representatives, and indicate what your medical wishes might be in the event that you cannot communicate your wishes at a later time.

Family Court Alberta Answers Will FAQ

No. This can be quite difficult. If you know the deceased person used a particular lawyer for some purpose in the past, you should try to contact that lawyer. If you have trouble finding that lawyer, you should contact the Law Society of Alberta to see if that lawyer is still practicing. If this turns out to be a dead end, you should contact banks that the deceased relative had dealings with to see if one of these has a safety deposit box belonging to the deceased. Though it’s not a good idea to store your will at home, many people do this. Places to check are desk drawers and filing cabinets, a safe (if the deceased had one), and even storage containers within a freezer. I have learned that some people use freezers to store important documents, however, I don’t personally recommend this storage technique.