McLellan Herbert, Barristers & SolicitorsVancouver Estate Litigation Lawyer | McLellan Herbert, Barristers & Solicitors2024-03-13T18:38:26Zhttps://www.mclellanherbert.com/feed/atom/WordPressOn Behalf of McLellan Herbert, Barristers & Solicitorshttps://www.mclellanherbert.com/?p=470282024-03-13T18:38:26Z2024-03-13T18:38:26ZInheritance can be a mixed blessing, especially when it involves complex assets. In Canada, certain types of property can create unique challenges for heirs.
Real estate
While real estate is a valuable asset, it may come with maintenance expenses and management responsibilities you may or may not be prepared for.Further, vacation homes or rental properties can be susceptible to capital gains taxes upon the deemed disposition at death. It's important to consult a tax, financial or legal professional to navigate potential tax liabilities and the application of the principal residence exemption, if appropriate.
Items with sentimental value
If you inherit items with sentimental value, emotions often run high. Jewellry, antiques or family heirlooms may not have a high monetary value, but their emotional worth is immeasurable.Appraising these items can be challenging because their market value may not reflect their significance to you or your family. Also, deciding who gets what can lead to disputes when multiple heirs are involved.
Business interests
Inheriting a business brings a different set of challenges. You may suddenly find yourself in a partnership with other stakeholders or in a position to run a company without prior experience. Navigating relationships with co-owners, employees, and customers can also prove to be challenging, as can the potential for significant expenses, like tax liabilities.Inheriting a business can change a person's life, and it may require professional valuation and legal advice to ensure a smooth transition and address potential conflicts among the involved parties.
Collectibles and collections
Collections, from art to stamps to vintage cars, present their own unique hurdles. First, there's the task of appraising the collection, which can be difficult if the items are rare or the market for them is niche.Once the value is established, questions can arise regarding whether to divide the collection among heirs or sell it to settle the estate. Transporting and storing a large or delicate collection adds another layer of complexity. Beneficiaries may need to work closely with appraisers, auction houses or other professionals to manage these assets appropriately.
Dealing with difficult property
Whether it's property, personal keepsakes, a family business, or a prized collection, inheriting these assets can lead to complications and unexpected challenges during and after estate administration.Emotional support from family, friends, or professionals can help during this sensitive and challenging time. And understanding the logistical, legal, and emotional aspects of inheritance can help ensure a fair and respectful outcome for all involved.]]>On Behalf of McLellan Herbert, Barristers & Solicitorshttps://www.mclellanherbert.com/?p=469272023-12-12T18:32:09Z2023-12-12T18:29:48ZEstate plans are an immensely valuable tool for Canadians. These plans can provide critical direction and guidance regarding financial and legal matters that can arise when a person passes away. However, plans for end-of-life care or long-term care will also be essential to a person's legacy.
An Advance Care Plan allows you to specify your wishes regarding healthcare decisions in the event of an emergency or if you cannot communicate your wishes to healthcare providers.
Three parts of an Advance Care Plan
Generally, there are three parts that comprise an Advance Care Plan. Each component serves a distinct function, but there may be some overlap.
Advance directives
Advance directives are written documents defining the type of medical treatment you want or do not want in case of incapacitation. They can be very specific or very general but typically include your decisions about life-prolonging treatment, including whether to administer or withhold:
Fluids or nourishment
Pain relief
Use of a ventilator to assist in breathing
Cardiopulmonary resuscitation
Extension of life in case of an incurable or irreversible injury or illness
Directives also include your wishes regarding whether you wish to receive end-of-life care at home, in the hospital or in hospice.
Power of attorney
Assigning a power of attorney means that you are designating a trusted person to handle your affairs and make decisions on your behalf if you are unable to do so. This can include:
Making financial decisions
Paying bills
Depositing checks
Handling applications for benefits
Dealing with insurance companies
Representation agreement
Representation agreements are legal documents that appoint a person to make medical and personal decisions if you are unable to make decisions for yourself. A representative's duties differ from those of the power of attorney designee, as this individual is only responsible for healthcare and personal decisions. However, the same person can be designated to handle both.
Putting the pieces together
The B.C. government offers an online guide to help you through the steps of creating advanced care plans. And having legal guidance can ensure these tools are valid and enforceable.Advanced care planning tools work with your will, trusts, and other information regarding your assets and legal affairs. They not only ensure that others follow your wishes but can also take the burden off your loved ones who must make emotionally charged decisions in light of your incapacity or after your passing.]]>On Behalf of McLellan Herbert, Barristers & Solicitorshttps://www.mclellanherbert.com/?p=469222023-09-29T15:47:16Z2023-09-29T15:47:16ZLosing a parent at any age is a complicated and often devastating experience; it can become even more complex when siblings fight over the administration of an estate. Unfortunately, this is not uncommon. There are some situations that happen more often than people might expect.
Accusations of undue influence
In situations where one sibling is much closer to or involved in a parent's life, they could face allegations of undue influence. This may happen if a will strongly favours that person or aligns more with their wants and needs than the parent's.
Deceitful actions
Adult children can still be motivated by things like sibling rivalries or birth order personalities and expectations. Thus, they might act impulsively and deceitfully. One example of this appeared in an article recently and involved a sibling accusing their brother and sister of hiding their father's will for their own financial gain.
Disagreeing over property management
Parents may have good intentions when leaving a piece of property to their kids, but having multiple owners can create confusion and disputes. For instance, siblings can struggle to reach agreements regarding maintenance, improvements and selling, which can drive a wedge between siblings and make it very difficult to co-manage property.
Clashes over decisions
Substitute decision-makers play a critical but complicated role when finalizing a person's affairs. However, their choices can come under scrutiny when others do not agree with them. Siblings can argue over what they think their parent would want in terms of medical care or how to distribute property.When a parent takes the time to have a comprehensive estate plan that clearly lays out their wishes, they can prevent many of these conflicts. Further, relying on professionals to fulfil specific roles instead of adult children can prevent in-fighting between siblings.Even when siblings previously got along, the process of dividing a parent's property and assets can be stressful and complicated, driving a wedge between families. However, with thorough planning and clear communication prior to a parent's passing, families can more easily and peacefully navigate these situations.]]>On Behalf of McLellan Herbert, Barristers & Solicitorshttps://www.mclellanherbert.com/?p=469192023-06-26T16:37:57Z2023-06-26T16:37:07ZCreating an estate plan can be overwhelming. There are a lot of emotions and legal details involved, and it can be very easy for people to put off until it's too late. However, taking it one step at a time can make this process less intimidating.
When you are ready to create your plan, focusing on some basic documents can be a good place to start.
Your will
A will is a vital component of your estate plan - and your legacy. A will determines who will get your property after you pass away and who will serve as a guardian for any minor children you have. Making a will can also have significant financial benefits as it can reduce costs, like those related to administering your estate.When making a will, be sure it is legally enforceable, and there are no unlawful or impossible clauses. You can do this by reviewing it with your lawyer.
Decision-maker appointments
If you become incapacitated or when you pass away, others will need to make decisions on your behalf. These decisions can be complicated and sometimes controversial, so appointing the right people to make them is crucial.The following are some of the substitute decision-maker appointments you can make in your estate plan:
Powers of attorney give someone else the right to make decisions regarding your financial and legal affairs.
Executors will make decisions regarding the administration of your estate.
Legal representatives can have the authority to make decisions about your personal care and health care needs.
A committee can make various decisions for you if you are incapacitated.
Appointing people to these roles yourself ensures you know and trust those who will make decisions on your behalf when you cannot.
Advance care directives
These documents detail the types of medical care and interventions you want or do not want. An advance care directive or living will ensures others respect your wishes when it comes to measures like:
Feeding tubes
Breathing machines
Life-prolonging interventions
CPR
Blood transfusions
You can also explain your beliefs and values, making it easier for others to make informed decisions on treatments that you may not specifically address.These fundamental elements of an estate plan can provide tremendous protection and guidance during difficult times. More advanced planning tools can be worth considering in the future, but these three areas are an excellent place to start.]]>On Behalf of McLellan Herbert, Barristers & Solicitorshttps://www.mclellanherbert.com/?p=469132023-03-16T18:26:13Z2023-03-16T18:26:13ZCreating an estate plan takes time, money and energy. After putting so much into it, you should feel confident that when the time comes, others can carry out your wishes properly. However, accessibility issues could prevent them from doing this.
No one can find your plan
Of course, you should keep your will and other important documents in a secure place, but it is crucial to let someone know where they are. Some places to store a signed hardcopy of your estate plan include:
In a safe deposit box
With your lawyer
In a personal safe
A locked filing cabinet
No matter where you decide to keep your estate plan, be sure to tell someone where it is. Tell your spouse, your lawyer or your best friend; someone you trust should know where to find these documents so they can get to them.
They can't log in
Another accessibility issue happens when people know where to find the files but can't get to them because of password or login restrictions.To avoid this situation, you may want to create and maintain a list of your accounts with login information. This can include:
Passwords
Email addresses tied to the account
Profile or user names
Account numbers
Answers to identity confirmation questions (e.g., your mother's maiden name, etc.)
Just like your estate plan, it is crucial that you keep this information somewhere safe. And again, make sure someone knows this document exists and where to find it. Otherwise, it can be as if you never created it.
It's taking too much time
Setbacks and delays can take a tremendous toll on your loved ones, not to mention the value and status of your estate. Taking steps to cut through some of the red tape and legal requirements of administering an estate can make it much easier for people to access your documents and any gifts you leave them.For instance, if you keep your will in a safety deposit box, ensure someone else has a key. Otherwise, accessing it could require a court order, which takes time.Keeping your estate plan safe is essential, but don't overlook these accessibility issues. Utilizing these tips could make a complicated situation a little less stressful.]]>On Behalf of McLellan Herbert, Barristers & Solicitorshttps://www.mclellanherbert.com/?p=469082023-01-13T19:58:12Z2023-01-13T19:57:41ZA new year provides us with a new chapter and a new year to look forward to. It also marks the time when laws and tax changes go into effect.
With so much newness surrounding us, now can be an excellent time to take a fresh look at your estate plan. Doing so can help you in a few critical ways.
Reflecting life changes
A lot changes over time. It is not unusual for people to want to change elements of their plan in light of the following:
Marriage or divorce
Having kids or grandkids
Having a serious illness
Familial estrangement
Reconciliation
Relocation
Significant increases or decreases in finances and property
These developments can change how you feel about your legacy. For instance, you might have more charitable goals or want to ensure someone gets specific property or funds. You might think differently about your inheritances or final wishes.
Updating information
An outdated estate plan can make tracking down people or assets unnecessarily complicated. It can create delays and prevent parties from properly carrying out your wishes. Thus, it can be wise to review a plan to update elements like:
Personal contact information
Banking details
Login and password credentials
Place of residence
Names of beneficiaries
When you make these administrative updates to your plan, you make it easy for others to find what they need to find during an otherwise challenging time.
Taking advantage of new opportunities
As we get older or fall ill, we can become eligible for certain programs. Investment strategies and business valuations change. And over the years, tax laws and other legal measures expire or go into effect.All these changes can affect estate planning strategies and options, so updating your plan regularly can be advantageous.Even if you are unaware of these changes, your lawyer or another party you work with to create your plan may have the knowledge to help you make informed adjustments. Failing to review your plan periodically could mean you are leaving money on the table.With all this in mind, now can be the perfect time to review your estate plan to ensure it aligns with your current wishes and circumstances.]]>On Behalf of McLellan Herbert, Barristers & Solicitorshttps://www.mclellanherbert.com/?p=469032022-09-21T18:24:48Z2022-09-21T18:24:48ZDiscussing end-of-life plans and legacies is something that can make people uncomfortable. As a result, too many people pass away or become incapacitated without having talked about their wishes with their loved ones.
Rather than put off this discussion with the people you love, consider the following tips that can make this difficult - but essential - conversation easier.
Start small
Bringing up an estate planning conversation can be the hardest part for some people. You might not want to overwhelm or upset someone. You might worry that they'll have questions you can't or don't want to answer.You can overcome all of these concerns by starting small. Some ways to do this include:
Speaking to just one person at a time
Keeping the conversation brief and informal
Giving them the broad strokes rather than getting into details
Focusing on one aspect, like what you want or don't want for final arrangements
Keeping the discussion small and straightforward can set important groundwork you can build on later.
Concentrate on unique components
Issues that can be more likely to trigger conflicts during the estate administration process are those that are unique or unexpected. Thus, focusing on these areas can help your loved ones navigate the probate and administration processes. You might want to prioritize explaining decisions such as:
Leaving money to charity instead of family
Appointing someone with a legal or medical background to decision-making roles rather than your closest family members
Wanting specific elements at a funeral
Distributing surprising types or amounts of assets
Disinheriting someone
Decisions like these can be more likely to cause arguments, so sharing them and your reasons behind them can prevent such conflicts from ever arising.
Make it a discussion
When your loved ones understand your choices and wishes, they can be better equipped to make decisions on your behalf - and accept them.As such, give others the time and space to ask you questions, get clarification and offer input, if appropriate. Keeping the discussion a two-way street allows all of you to be clear and confident about the future.These tips can make it easier to have a difficult discussion so that you can preserve your legacy. ]]>On Behalf of McLellan Herbert, Barristers & Solicitorshttps://www.mclellanherbert.com/?p=468992022-07-07T17:37:11Z2022-07-07T17:33:59ZDeidre Herbert of McLellan Herbert for the Pacific Business & Law Institute Elder Law 2022 program on September 29, 2022. Click here to learn more and register!
]]>On Behalf of McLellan Herbert, Barristers & Solicitorshttps://www.mclellanherbert.com/?p=468962022-06-27T16:31:45Z2022-06-27T16:31:45ZWhen someone you love passes away, the legal process of settling their affairs can be enormously stressful and upsetting. The parties charged with these responsibilities must take them seriously and make decisions in the best interests of your loved one.
If you feel that an executor is not doing this, you should know your options.
Disagreement or breach of duty?
It is important to understand that disagreeing with an executor's decisions does not mean they are doing something wrong.For instance, you may not like how they distribute assets or how long the process of getting money or property is taking, but that may not necessarily be the fault of the executor.A decedent's wishes and best interests trump what you may think should happen. And unfortunately, the legal process can be slow and complicated, meaning some delays and setbacks could be out of the executor's hands.That said, people in this role may not be prepared or well-suited to fulfil the duties of an executor, meaning they may make poor decisions and mistakes. Inexperienced or unfit executors could be accused of breaching their duties by:
Mismanaging assets
Making bad investments
Neglecting their duties
Failing to close accounts
Wasting money
Stealing
Acting in their own best interests
Failing to get help from legal and financial professionals
These mistakes can have a financial, legal and emotional toll on you and others affected by the estate administration process.
Taking action
If you know or suspect an executor is breaching their duty, you can take action. Depending on the allegations against the executor, potential measures can include:
Demanding a financial accounting of estate-related transactions
Requesting better or more consistent communication
Petitioning the courts for removal of the executor
Mediating disputes
Suing the executor
Exploring your options with a lawyer on what might be right for your situation sooner rather than later can minimize losses and stop misconduct.It is painful enough to cope with the loss of a loved one; feeling that an executor is improperly managing the administration of their estate only makes things more stressful. Hopefully, knowing that there are ways to address these concerns can help. ]]>On Behalf of McLellan Herbert, Barristers & Solicitorshttps://www.mclellanherbert.com/?p=467962022-03-29T17:39:50Z2022-03-29T15:38:12ZAs parents get older, they can experience mental and physical conditions that make them vulnerable to unscrupulous parties looking for financial gain.
In too many cases, these parties are family members or caregivers who are in a position to take care of a parent, making it easier for them to cover up misdeeds. Thus, signs of coercion or duress may not become evident until after the parent passes away.
Uncovering coercion after a parent's death
A will or other estate planning document can give loved ones a glimpse into their parent's mental capacity that they did not see or have access to while the parent was alive. If these documents contain surprising or suspicious elements, it can be crucial to investigate whether a parent was under duress when they drafted or changed their estate plan.Some signs that someone coerced, threatened or manipulated a person into altering their will include:
Making rapid changes immediately before their death
Disinheriting someone without explanation
Using strange or uncharacteristic language
Leaving gifts that do not align with their spiritual, cultural or religious beliefs
Adding an unknown party to the list of beneficiaries
These details can be red flags that a parent was under duress or the influence of someone else at the time and that their final wishes are not their own.Under these circumstances, contesting a will during probate can be wise.
Preventing this in the first place
While successfully contesting a will may set it aside, it can be a stressful, time-consuming process. It can be easier to prevent the situation from arising in the first place.Those wishing to protect a parent from someone who may try to coerce or threaten them into changing their will can:
Keep in frequent communication
Alert clinic administrators or law enforcement agents if you suspect a parent is the victim of abuse or neglect
Have a trusted party oversee a parent's finances and report suspicious behaviour right away
It can also be crucial to talk to your parent about their estate plan. You don't need to know exactly what your parent puts in their will, but you can connect them with a lawyer who can ensure the will is legally enforceable and drafted properly. No one wants their parents to be taken advantage of. These steps can protect your parent and their legacy. ]]>