5 Common Questions About Estate Law, Answered
Note: This article does not contain legal advice about common questions about estate law and B.C. estate law planning. If you would like advice on your specific situation, please contact Spraggs Law.
Vancouver lawyer Michael Liu discusses 5 common questions about estate law. This article provides a summary of these estate law questions and how a professional lawyer can help you maneuver them.
Estate Law Question #1: What Happens When the Deceased Did Not Leave a Will?
When there is a will, an executor is appointed to deal with the deceased’s assets and liabilities in accordance with the will.
When there is no will, a person can be appointed as the administrator of the estate and will deal with the deceased’s assets and liabilities in accordance with statutory provisions. If more than one person wishes to be appointed administrator, the law provides an order of priority starting with the surviving spouse. The court may also appoint more than one administrator or appoint whomever it thinks is the best candidate.
Estate Law Question #2: Can I Challenge a Will?
In B.C, a will can be challenged in two main ways. First, the validity of the will may be challenged because:
- The will fails to meet certain basic statutory requirements such as missing signatures;
- The will was executed under dubious circumstances such as if the willmaker was coerced or somehow unduly influenced;
- There was fraud involved in the execution of the will; or
- The willmaker lacked the necessary capacity to give or appreciate his or her instructions.
Alternatively, the court has the power to vary an otherwise valid will. Only a spouse or child (biological or adopted) of the willmaker has standing to seek a variation of the will. To successfully vary a will, the claimant must convince the court that the will, as it stands, inadequately addresses the willmaker’s legal or moral obligations owed to the claimant.
The will can also be partially challenged in that the overall validity of the will is not at issue but the court needs to step in to address certain provisions that are somehow inadequate, e.g. ambiguous wording, internal inconsistency, etc.
Estate Law Question #3: Can I ask the Executor for a Copy of the Will?
While there are some exceptions, an executor generally needs to apply for an estate grant before he or she can distribute the estate’s assets. The executor is obligated to notify all beneficiaries and interested parties of his or her intention to apply for an estate grant at least 21 days before the application is submitted and a copy of the will is to be enclosed with the notice. A court may make an order to dispense with the notice requirement but there must be a compelling reason to do so.
Before applying for an estate grant, the executor is not obligated to provide a copy of the will but has discretion to do so.
Estate Law Question #4: If I Am Not Happy With How the Executor is Handling Things, What Can I Do?
The court can be asked to review an executor’s conduct or performance. A wide range of outcomes may occur:
- The court absolves the executor of any misconduct;
- The court finds some misconduct but the issue can be remedied with some guidance and directions;
- The courts find significant misconduct such that the executor’s powers need to be restricted; for example, the executor is banned from making certain financial transactions or a co-executor or independent monitor is appointed; or
- The court finds the misconduct so blameworthy that the executor must be removed and replaced.
The executor may attract personal liability if the misconduct is blameworthy and harms the interest of the estate.
Estate Question #5: I Am the Executor. What Now?
The main task of the executor is to account for the deceased’s assets and liabilities and distribute the net equity of the estate in accordance with the will.
When one becomes the executor, the very first thing to consider but is often neglected is whether the person even wants to be an executor. It is possible to renounce executorship by taking certain formal legal steps.
Depending on the willmaker’s wishes and the size and complexity of the estate, being an executor can be a very time consuming and expensive process.
If you decide to act as an executor, it is recommended that you consult with a lawyer to determine what your duties and obligations are, and whether you need assistance from a lawyer, an accountant, or any other professional.
Do you need help with a will or other B.C. estate law issue? Spraggs Law can help
Give us a call at 604 359 1627 for a free consultation to discuss how we can offer personalized estate law assistance based on your circumstances.
Tags: estate law