So You’ve Been Appointed an Executor. Now What?

A close friend or loved one has died and you are aware that you have been named executor in his or her Will.

What should you do next?

Step 1

Locate the Will. In many cases, the deceased will have told the executor where the Will is located but there are times where the deceased has not informed the executor of the location of the Will. Where the Will cannot be easily located, the executor will have to submit a form called an Application for Search of Wills Notice with the Wills Registry administered by the Vital Statistics Agency of British Columbia, which provided if a legal professional submitted a Wills Notice, will indicate the last known location of the Will and the name of the legal professional who prepared the Will. Sometimes, the original of the Will may not be located but a copy of the Will may be located and that is usually sufficient to carry out the last wishes of the deceased.

Step 2

Once the Will is located then it is always a good idea to review the terms of the Will with a lawyer specializing in the area of Wills and Estates, followed by a meeting with a Certified Public Accountant to understand what steps need to be taken so as to ensure the deceased and the estate remain in compliance with the Income Tax Act

Step 3

Arrange for the funeral of the deceased. In many cases, you can take the bills from the funeral home to the financial institution and the financial institution will release funds from the deceased’s account to pay the funeral bills in advance of the grant of probate.

Step 4

Cancel all credit cards and subscriptions.

Step 5

Apply for Canada Pension Plan Death Benefits as there is a strict time limit for applying for such benefits and review any other employment relation pension plans that the deceased received during his/her lifetime to determine if any death benefits are available.

Step 6

Compile a list of assets and debts in the sole name of the Deceased.

Step 7

Obtain death certificates to facilitate the transfer of assets owned by the deceased jointly with others into the name of the survivor(s). Such assets can include joint bank accounts and real estates. Also, submit the death certificate to those financial institutions where the deceased had RRSPs, RRIFs, TFSAs or life insurance policies with named beneficiaries.

Step 8

With the assistance of a Wills & Estates lawyer, apply for a grant of probate of the Will which is the legal process through which the validity of the Will is recognized by an order of the Supreme Court of British Columbia. For more information on what probate is, please see our articled called WHAT IS PROBATE?

Step 9

Once probate is granted, take the court order – grant of probate to all financial institutions where the deceased had accounts and have such accounts transferred into your name, Executor of the Estate of the “Name of the Deceased”. In the event that deceased owned real estate in British Columbia, submit the court order – grant of probate to the Land Title Survey Authority to have any parcels of real estate in the deceased’s sole name registered into your name, Executor of the Estate of the “Name of the Deceased”.

Step 10

Advertise for Creditors of the Deceased, examine all creditor’s claims, and pay all proven debts of the Deceased.

Step 11

Collect all amounts due and owing to the Deceased.

Step 12

With the assistance of a Certified Public Accountant, arrange for filing of all requisite tax returns and obtain from Canada Revenue Agency, the tax clearance certificate which confirms that all taxes of the Deceased and the Estate have been paid. Failure to obtain the tax clearance certificate prior to distributing the estate to beneficiaries could result in you being personally liable for unpaid taxes of the Deceased and the Estate.

Step 13

Prepare an accounting of monies transferred into your name in your capacity as executor and funds paid out to cover estate expenses. Prepare a further accounting of the funds remaining after payment of estate expenses to be distributed in accordance with the terms of the Will.

Step 14

After waiting a period of 180 days from the grant of probate so as to ensure no challenges to the Will by a spouse or children of the Deceased, obtain the written consent of the beneficiaries to the proposed distribution of the Deceased’s estate and a signed release from each beneficiary releasing you from any claims as the executor of the estate and once having obtained the written consents and releases from all beneficiaries, then distribute the funds.

Depending on the biographical details of the Deceased, the size of the Deceased’s estate and the nature of assets held by the Estate, the steps outlined above may be incomplete or slightly out of sequence. It is important to consult the advice of a wills and estates lawyer to determine the correct steps to take when administering an estate. If you or a loved one has been appointed an executor under the terms of a Will, consult Vancouver and Burnaby Wills, Estates, and Probates lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

Is your ex-spouse asking for child support for a kid that’s not yours? You’re not sure if you’re supposed to?

Whether you are just starting a relationship with someone who already has a child or are ending a relationship with someone who has a child, it is important to know what you should, could, and would be responsible for.

You might be held responsible for child support if you are qualified as common-law partners and are qualified to be labelled as spouses. To qualify as a spouse, you must be living together with your partner in a marriage-like relationship for at least 2 years, married to your partner, or have a child with your partner. Furthermore, if you begin taking on the financial liability of your partner’s child, you might have to continue this after the relationship has ended.

Although according to Section 147(4) of the Family Law Act, a step parent does not bear the duty to provide for a child unless the step parent contributed to the support of the child for at least one year, and the court proceeding for child support is started after the within one year of the last contribution of the step-parent. Section 147(5) of the Family Law Act says that the support of a step-parent is secondary to the child’s parents and guardians. Support from a step-parent would be based on the experienced standard of living of the child as well as the length of time lived with the step-parent.

In short, you cannot be responsible for your partner’s child/ren unless you have been taking on the role of being their parent while in the relationship or contributing to the child’s financial support on a regular basis for an extended period of time. That means that you should be cautious to voluntarily take on a parent role if you are not serious about the relationship yet or do not want to be chased for child support for the child in the future! You can give gifts, treats, and provide meals for the child but do not assume the financial liability of the child if you do not want to continue this financial responsibility after the relationship.

If you or a loved one are in need of advice regarding child support for a step-child, consult Vancouver and Burnaby Family Law lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

My Spouse Isn’t Paying Enough Child Support!

So you and your spouse have split up and you’re thinking that you should be owed more child support than is currently being paid.

In BC, child support is calculated using the Federal Child Support Guidelines along with the parent’s gross income. But what happens if your spouse tries to pay less than what they owe by hiding their income? Or if they are deliberately earning less than what they are capable of? What if your spouse tries to get out of paying child support altogether?

In all of these cases, the court may “impute income” to your spouse. Once the court determines that your spouse is underemployed or intentionally unemployed and not seeking to obtain employment, your spouse’s income will be imputed and the court will order them to pay the appropriate amount of child support. The court imputes income on an evidentiary basis, based on what it believes your spouse is capable of earning or what they actually make.

To determine if your spouse is earning to capacity, the court will apply the following principles:

Parents who are healthy and can work have a duty to seek employment
Reasonable income-earning capacity will be based on consideration of a parent’s age
Limited experience and skills do not justify a failure to pursue employment
Persistence in un-remunerative employment or unrealistic career aspirations will not be an excuse
Self-induced reduction in income will not justify the avoidance of child support obligations

The following are some more reasons under section 19 of the Federal Child Support Guidelines for which the court may decide to impute income to your spouse:

The spouse is exempt from paying federal or provincial income tax
The spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada
The spouse’s property is not reasonably utilized to generate income
The spouse unreasonably deducts expenses from income
The spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust

Remember, the court will need to have sufficient evidence from you to justify imputing income to your spouse.

If you or a loved one are seeking to claim child support and/or to have income imputed, consult Vancouver and Burnaby Family Law Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107

Who Keeps the Ring After Separation?

Separation from your spouse or fiancé(e) can be a very testy time in your life and you may have many questions during this time, including: who keeps the ring?

In British Columbia, according to the BC Family Law Act, the gift of an engagement ring is considered a conditional gift. This means that it is gifted with the expectation that you and your fiancé(e) will marry each other at some point.

Before Marriage

However, if you separate before you end up getting married to each other, you fail to meet the condition, and the ring would have to be returned to the person who gifted it.

After Marriage

If you are already married when you separate, then the recipient of the ring would get to keep it. This is because having married, you will have met the condition associated with the gift of the engagement ring.

Exceptions?

There may be exceptions, depending on your unique situation. In the past, there has been a case in BC where the recipient of the engagement ring was entitled to keep it despite the fact that the couple hadn’t been married yet, because she maintained that her then fiancé had given it to her as an absolute gift.

Another exception would be if the recipient had paid for their own engagement ring. In both of those cases, the recipient keeps the ring even though generally they would have to give it back as it is normally a conditional gift according to the BC Family Law Act.

As you may see, even the simple question of “Who keeps the ring?” can elicit quite a complicated answer.

If you or a loved one have separated from a relationship and require assistance in dividing your assets, consult Vancouver and Burnaby Family Law Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107