Layout Image

Archive for contesting a will

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!

 

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.

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.

Not typically. A will is a legal document dealing with the transfer of assets after your death. As such, it is nowadays rare for a person to express religious sentiments within a will. That being said, historically, wills often used religious wording. Also, sometimes a person will indicate in a will that he or she wishes to have a particular form of religious funeral. In some cases, a person contesting a will indicate that he or she wishes for children to be placed with particular guardians, and the motivation for this may be religious in nature. As well, sometimes people will leave gifts to religious charities.

That depends on the circumstances. Testamentary freedom (the right to deal with your assets as you see fit) is sometimes limited by public policy considerations. A court may consider any number of legal loopholes to overturn a racist or sexist provision in a will. I would strongly advise against such provisions.