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Archive for Calgary Law Firm

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.

 

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.

 

 

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.

 

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.

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.

Is a will valid if I commit suicide?

Monday, September 30th, 2013

Potentially, yes. The simple act of suicide doesn’t invalidate a will. However, if your suicide suggests that you weren’t mentally competent, or were under duress, at the time you wrote your will, then your will might end up being challenged.