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Archive for calgary legal guidance

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 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.

 

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.

 

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.

When a will is probated, it becomes a document of public record that potentially anyone, including the media, may have access to. You should keep this in mind, if you are saying things that you would not wish to be made public. As well, you should consider the long term effects that your words may have on your friends and family members. In some cases, negative comments may actually encourage others to challenge the validity of your will, whether or not there is any legal merit to such a challenge. This may have the effect of making things difficult for your executor and may deprive your beneficiaries of what would otherwise be their rightful inheritance.

That depends on whether the beneficiary is found guilty of your murder. If the beneficiary gets away with your murder, he or she may still benefit from your estate. If the beneficiary is found guilty of your murder, he or she is not legally allowed to profit from the crime.