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Archive for Calgary Legal Wills FAQ

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.

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.

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.

 

 

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.