What if there are issues with the Will or concerns about its validity?

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Whereas some issues with a Will can be rectified, others will result in the Will being held as invalid.

Issues concerning undue influence or lack of capacity can have the effect of invalidating a Will. A Will may also be invalid if it does not comply with s.37 of the British Columbia Wills Estates and Succession Act (“WESA”) which states that the Will must be:

(a) In writing,

(b) Signed at its end by the Will-maker or the signature at the end must be acknowledged by the Will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and

(c) Signed by 2 or more of the witnesses in the presence of the Will-maker.

Further, a Will that contains unclear provisions may be found to be invalid or the particular gifts that are the subject of the unclear provisions may fail unless they can be cured under certain provisions in WESA. Other issues with a Will, such as formality requirements, may be able to be fixed through provisions of WESA.

Under section 58 of WESA, if a Will does not satisfy the formal requirement, the court has discretion to cure the formal deficiencies. This generally involves ascertaining the Will-maker’s testamentary intentions.

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How should I communicate with beneficiaries and potential heirs of the estate?

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Executors should initiate conversations promptly after the passing of the deceased, providing clear information about the probate process, including steps, timelines, potential delays, and the roles involved.

Written communication, such as formal letters or emails, not only ensures that details are documented but also provides beneficiaries with a reference point. An executor is obligated to keep beneficiaries “reasonably” informed throughout the estate administration process and to answer inquiries made by beneficiaries in a timely manner. What is reasonable depends on the circumstances and estate administration can take months or years to complete.

If the executor is not communicating with beneficiaries and delay is becoming an issue, a court application can be brought to compel the executor to complete the administration of the estate and distribute the estate’s assets.

Beneficiaries should be provided with enough information to ensure the estate administration process is progressing and that the estate is being administered in accordance with the terms of the Will. At the start of the process, the executor must provide notice to each person with an interest in the estate. This notice should indicate what the beneficiary is entitled to pursuant to the terms of the Will.

Delivery may be by personal delivery, ordinary mail, email, or other electronic means to the address provided by the person for that purpose. There is no requirement to prove receipt of a notice that has been mailed.

However, before mailing, the executor must make reasonable efforts to verify that the address is current, even when the Will-maker has long been out of touch, and if it is not, make an effort to trace the current address.

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What documents do I need to gather and file in relation to the probate process?

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The documents required for a typical application for probate are:

1. A submission for an estate grant;

2. An affidavit of the applicant for grant of probate from the applicant;

3. If there are two or more applicants, an affidavit in support of an application for an estate grant from each applicant;

4. Two copies of a certificate of Wills notice search;

5. Any affidavit or material required to deal with issues relating to the Will, including proof of due execution, the effect of interlineations or alterations, or electronic Wills;

6. One or more affidavits of delivery that, collectively, confirm that notice was delivered to all persons to whom notice must be given;

7. An affidavit of assets and liabilities from the applicant;

8. Two exact copies of the Will or a copy of the Will being submitted;

9. The written comments of the Public Guardian and Trustee if notice of the application must be given to the Public Guardian and Trustee on behalf of a minor or a mentally incompetent person;

10. A draft of the estate grant or authorization to obtain estate information (although drafts may not be required at some registries such as Vancouver which will prepare these documents internally);

11. A lawyer’s trust cheque, certified cheque, or bank draft (the court registry will not accept personal cheques) for the initial probate filing fee in the amount of $200, to be submitted with the application (note that no filing fee is payable if the estate does not exceed $25,000 in value);

12. A lawyer’s trust cheque, certified cheque, or bank draft for the balance of the probate fee, is to be submitted when the probate registry has advised that the application has been approved and confirmed the amount of the fee.

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Are there any potential legal disputes or claims that I should be prepared for?

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As an executor, there are many potential legal disputes or claims that may arise. One common challenge lies in disputes concerning the validity of the Will, where allegations of undue influence or lack of mental capacity can lead to litigation. Other issues with the Will can include problems with formalities, as well as unclear provisions in the Will.

In BC, an issue that can arise is Wills variation claims by the spouse or children of the deceased. The definition of “child” in this context includes adult children.

Under section 60 of the British Columbia Wills Estates and Succession Act, a spouse or child may commence a proceeding to vary a Will that does not adequately provide for the spouse or child’s proper maintenance and support.

In this situation, the court may order the provision be made that it thinks is “adequate, just and equitable” in the circumstances. If a Wills variation proceeding is commenced, a distribution of the estate may only occur with the consent of the court.

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What is probate and is it necessary?

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Probate is the proof of the deceased’s Will. In granting probate, the BC Supreme Court will certify that a document proffered as the deceased’s last Will is what it is purported to be.

A grant of probate will become necessary if the validity of the Will is called into question. If a grant of probate is necessary, the next question is whether the executor will seek a grant of probate in common form or a grant of probate in solemn form. Probate in common form is the procedure by which a Will is approved by the court as the last Will of a testator.

Probate in solemn form pronounces for the validity of the will and also confirms the appointment of the person named as executor in the Will. Agencies and financial institutions that hold assets in an estate generally require that a Will be probated before allowing an executor to access the assets.

Until a grant of probate is issued, the executor does not have any legal right to deal with the assets of the deceased. In British Columbia, before applying for the probate grant, the executor needs to send a notice of their intention to apply for the grant to certain people, including every beneficiary named in the Will.

In order to obtain a grant of probate of a Will, the Will must be proved to the court on the basis of affidavit evidence filed with the court by the executor.

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How do I handle debts and liabilities of the deceased person, including taxes?

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One of the duties of the executor is to pay any debts and liabilities of the estate, which includes paying taxes. As executor, you have a duty to pay all legitimate debts of the estate before making a distribution to beneficiaries.

According to section 142(2) of the British Columbia Wills Estates and Succession Act (“WESA”) the executor must account to the creditors as well as beneficiaries. The beneficiaries will receive the residue after these debts and taxes have been paid. According to section 159(2) of the Income Tax Act, an executor must also obtain a clearance certificate from the Minister before making a distribution.

If the assets are not sufficient to pay all the debts and the gifts under the Will, the assets must be liquidated to pay the debts in an order specified by WESA. As a note, benefit plans that have designated beneficiaries pay benefits directly to those beneficiaries, and creditors of the estate have no access to payments made from benefit plans: WESA, s. 95.

An executor is not liable for the debts of the estate, but if the executor distributes assets before the debts are paid, then he or she could be held accountable for the amount they distributed. Also, according to WESA, s. 53(3), if the Will leaves a gift to a creditor, that gift is not necessarily a payment by the Will-maker on the debt, unless the Will clearly says that it is. In other words, a creditor might take a gift and still pursue a debt.

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What steps should I take to ensure the proper distribution of assets according to the Will or provincial law?

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The executor must follow the instructions in the Will and distribute the assets accordingly. The British Columbia Wills, Estates and Succession Act imposes a 210-day waiting period during which an executor must not distribute the estate without the beneficiaries’ consent or a court order. This waiting period is to allow beneficiaries who may have a claim for Will variation to file their claim. Further, an executor should ensure that all debts and taxes are paid before making a distribution to the beneficiaries of the Will.

The distribution of an estate may depend on the type of gift set out in the Will. Gifts may be conditional, which means that they depend upon a particular event taking place or a particular situation existing. The Will-maker may also make specific gifts, giving particular assets to named individuals or broadly dividing the estate assets among named groups.

As a note, certain items are not passed through a Will, such as life insurance, property held in joint tenancy, or funds in an RRSP which a beneficiary was named. When making final distributions to a beneficiary, he executor should obtain approval of their executor fees and a Release from beneficiaries on payment of the bequest.

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How do I locate beneficiaries?

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The deceased’s Will is often the primary source of information about beneficiaries. Personal records such as address books and digital contacts offer potential leads, as well as online searches and social media platforms.

Financial institutions can also provide clues, as beneficiaries are often linked to accounts and investments. Furthermore, the beneficiaries’ family and friends may possess valuable insights into the whereabouts of the beneficiary. Other practical steps include checking their last known address and talking to their neighbours, checking with their last known employer, and asking at places where they are known to have contacts (for example, clubs and social organizations).

If, after taking these steps, you still can’t find the beneficiary, you can hire someone to locate a person’s whereabouts. This is known as a trace, and there are several companies in BC that offer tracing services. Whichever company you choose to work with, they will want as much information about the beneficiary as you can provide. However, if you are still unsuccessful, you may need to apply to court for an order either dispensing with notice or notifying the missing beneficiary in a different way such

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How do I locate and access the deceased person’s assets and accounts?

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Locating and accessing the deceased person’s assets starts with gathering documents such as the Will and financial records.

Sometimes, all of these assets and where they can be found will be listed in the Will. However, many Wills simply reveal how the value of the estate will be divided, or only list a few selected items that the deceased wanted specific people to have.

Some common sources of information for finding the assets include the deceased’s lawyer or accountant, a list prepared by the deceased, and recent tax returns. An important step in accessing the deceased’s accounts involves notifying financial institutions and service providers of the death, accompanied by necessary documents like the death certificate and a grant of probate from the court.

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What are my legal responsibilities and duties as the executor of an estate?

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An executor is a person named in a Will to deal with the Will-maker’s estate after they die.

They must gather up the estate assets, pay the debts of the deceased, and divide what remains of the deceased’s estate among the beneficiaries. As an executor, your duties are multifaceted. The executor of a Will has a fiduciary duty to act in the best interest of the estate and its beneficiaries, which means that the law prevents you from acting in your own interest to the detriment of the estate.

First, executors must initiate the probate process by validating the existing Will, and they must locate and safeguard all assets owned by the deceased, such as personal property and real estate. Managing the financial aspects of the estate is another important executor duty, which includes taking control of all assets and paying all proven debts of the estate. These debts include amounts owing under the Income Tax Act (“ITA”). Section 159 of the ITA makes the executor of an estate jointly and severally liable with the estate to pay amounts owing under the ITA.

In other words, the executor may be held personally liable for these debts and taxes if they remain unpaid after the distribution of the estate. The joint and several liability of the executor is limited by the value of the property of the estate which he possessed or controlled during the time of his appointment. Executors must file tax returns for the deceased and for the estate, as well as obtain a clearance certificate from the Minister: ITA, s. 159(2).

Further, executors must appraise assets accurately and distribute them equitably among beneficiaries in accordance with the Will. Other duties include cancelling subscriptions, redirecting mail, and wrapping up other personal matters. Executors also owe a duty to account to all beneficiaries and any other persons with an interest under the Will, which means they must provide information about the status of the estate and its administration.

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