Of all the estate planning decisions you have to make, choosing someone to be your Power of Attorney Administration can be the hardest. If you have adult children living nearby this is an easy choice. But if you don’t have children, or they live far away, or you can’t rely on them, this can be a real problem.
If you become incapable of managing your financial affairs through illness or age, the job of being your “Lawful Attorney” can be a long and arduous one. You will need someone you can trust, and who is in it for the long haul: Some people live for many years after losing capacity. You will need someone to manage your investments, pay your bills, file your taxes, and look after the many little matters that can come up, like arranging new eyeglasses, scheduling a companion, or keeping away predatory relatives. Ideally you will choose someone who is a generation younger than you, who lives locally, and whom you can trust. Nieces and nephews can be a good choice. Another option is to choose older friends or relatives and have them backed up by a professional – a trust company, accountant or law office – if they can’t do it, or need assistance. Delta Law Office provides this service.
Adults will often need someone to make decisions on their behalf towards the end of their life. Two documents commonly used to authorize someone to make legal, financial, and medical decisions on an adult’s behalf are a Power of Attorney Administration and Representation Agreement. If an adult in your life hasn’t prepared these documents but suddenly needs someone to assist them with their decision-making, there is a process to fill that vacuum by applying to court to take control of the adult’s affairs. However, the process can be onerous.
First, all of the adult’s next of kin need to be notified of the situation. They may object to your application or otherwise take issue with it, causing problems and delay. Second, two doctors must be involved and they must attest to fact that the adult needs someone to assist them with their decision- making. The adult might resist having their mental capacity evaluated, and doctors may charge a fee for the assessment. Third, court can be unpredictable. A judge might find that you are not the best person to make decisions for your loved one, or they might put restrictions on your decision-making authority in an attempt to protect the adult.
Preparing a Power of Attorney Administration and Representation Agreement will prevent these issues and save your family time, expense, and stress. Most importantly, it helps to ensure that in the event of your possible incapacity, the person making decisions on your behalf is the person that you wish to make those decisions.
Financial exploitation is a common form of elder abuse, often through misuse of Powers of Attorney (“PoA”). A PoA gives your Appointee the right to do anything you could do except make up a new will: Cash in your bank accounts, or sell or remortgage your house, even while you are in it. Children in need of money can convince themselves “I’m going to get mom’s money when she dies, so it won’t hurt her if I borrow some money while she is still alive.”
An Appointee under a PoA must always act only in your best interests, and must never benefit themself. When choosing your PoA, consider whether the person is in control of their lives and finances; if they can’t manage themselves, they can’t manage you. Don’t stop at appointing your spouse; you are getting older together, and may need someone younger to take over. Try to appoint someone local; the job of PoA can last for many years, and it is that much harder if the Appointee is from out of town. If you don’t have anyone to be your PoA then consider a professional, such as a trust company, a law office – yes, DLO provides this service – or a non- profit such as Solus. If you don’t appoint anyone, the Public Guardian may have to step in. Our office practice is to keep a PoA in our secure bank vault until the time it is needed – which it might never be. We only release it at your request, or on receipt of a doctor’s note stating that “the time has come”. This does not prevent PoA fraud, but it lessens the chance that the PoA will be “borrowed” from your desk drawer while you still have all your wits about you.
Adults will often need someone to make decisions on their behalf towards the end of their life. Two documents commonly used to authorize someone to make legal, financial, and medical decisions on an adult’s behalf are a Power of Attorney Administration and Representation Agreement. If an adult in your life hasn’t prepared these documents but suddenly needs someone to assist them with their decision-making, there is a process to fill that vacuum by applying to court to take control of the adult’s affairs. However, the process can be onerous.
First, all of the adult’s next of kin need to be notified of the situation. They may object to your application or otherwise take issue with it, causing problems and delay. Second, two doctors must be involved and they must attest to fact that the adult needs someone to assist them with their decision- making. The adult might resist having their mental capacity evaluated, and doctors may charge a fee for the assessment. Third, court can be unpredictable. A judge might find that you are not the best person to make decisions for your loved one, or they might put restrictions on your decision-making authority in an attempt to protect the adult.
Preparing a Power of Attorney Administration and Representation Agreement will prevent these issues and save your family time, expense, and stress. Most importantly, it helps to ensure that in the event of your possible incapacity, the person making decisions on your behalf is the person that you wish to make those decisions.
Financial exploitation is a common form of elder abuse, often through misuse of Powers of Attorney (“PoA”) resulting in Power of Attorney Administration Fraud. A PoA gives your Appointee the right to do anything you could do except make up a new will: Cash in your bank accounts, or sell or remortgage your house, even while you are in it. Children in need of money can convince themselves “I’m going to get mom’s money when she dies, so it won’t hurt her if I borrow some money while she is still alive.”
An Appointee under a PoA must always act only in your best interests, and must never benefit themself. When choosing your PoA, consider whether the person is in control of their life and finances; if they can’t manage themself, they can’t manage you. Try to appoint someone local; the job of PoA can last many years. If you don’t have anyone to be your PoA then consider a professional, such as a trust company, a law office – yes, DLO provides this service – or a non-profit such as Solus.
Our office practice is to keep a PoA in our secure bank vault until the time it is needed – which it might never be. We only release it at your request, or on receipt of a doctor’s note stating that “the time has come”. This does not prevent PoA fraud, but it lessens the chance that the PoA will be “borrowed” from your desk drawer while you still have all your wits about you.
The simple answer is no. Using joint ownership to try to avoid probate fees may seem like a good idea, but it can actually result in a whole host of problems including increased risk.
Let’s take a look at the big picture. Once a person becomes a joint owner, the equity in the home could be made available to that person’s creditors in the event of a divorce, bankruptcy, or other financial legal settlement. For example, in a divorce your son or daughter’s spouse could demand that the divorce settlement include a portion of the equity in the property. In the case of a bankruptcy, your home may be at risk of being repossessed to pay off creditors. Another possible case could be that your son or daughter is involved in a car accident and ends up being sued for an amount greater than they’re insured for. Instead of providing your child with a “nest egg,” you could end up losing everything even before you pass away.
There are also tax implications. If your home is not your son or daughter’s principal residence, he/she would have to pay capital gains on his/her percentage of interest in the property upon your passing, often amounting to more than the probate fee’s payable.
And, adding a second registered owner to the title of the property means that they will need to sign any documentation relating to the subsequent sale or refinancing of it.
To summarize, in most cases, we find that any benefits of avoiding probate fees using joint ownership are outweighed by the risks and costs involved.
Is "Probate" really the dark scary cloud lurking from beyond the grave to devour the estate of a departed loved one? While it may be prudent to take steps to avoid it, probate is not a fearful crisis, and has an important role to play in the orderly transfer of assets from an estate to the rightful beneficiaries. Wills are powerful pieces of paper – they can deal with large amounts of money and property – and there can be problems with them. An earlier will is cancelled by a later one. Marriage can invalidate a will. A will can be improperly signed (no witnesses, or witnesses who are also beneficiaries.) Or it can be challenged for not making adequate provision for a spouse or child, or because the maker was not mentally competent, or was pressured into making the will. So when a bank, or the Land Title Office, or an insurance company, or any other agency that controls assets, is presented with a document purporting to be a “last Will”, it has no real knowledge of the story behind the paper. And no agency wants to pay out money or transfer real estate to the wrong person, or be embroiled in litigation.
Probate is the process by which the Supreme Court of BC reviews the will and the circumstances of it and – if it passes – gives it a stamp of approval in
the form of an order of Letters Probate. The Court checks to see that all interested parties are notified; that there are no earlier wills; that there are
no claims (or that claims are dealt with if they are made) and that the assets are properly investigated and disclosed. Oh yes, and they charge a fee.
Probate fees are 1.4% of the gross value of the estate: something that can be avoided where advisable, but not a major cost where they cannot be avoided.
And a well-run probate application should take no more than 3-4 months.
Although it is frequently viewed by a Will maker as an “honour “ bestowed upon ones nearest and dearest, the role of Executor comes with deadly serious responsibilities and duties, and should not be taken lightly. Depending on the complexity and size of the Estate to be administered, it could be a trap for the unwary!
The basic duties of the executor are to collect the assets of the estate; deal with creditors and claims, including tax issues; administer and distribute the assets to the beneficiaries in accordance with the Will. The most problematic of all of these duties is dealing with and accounting to the beneficiaries.
An executor must be scrupulous and even handed in his dealings with the beneficiaries. There can be no hint of “Self-dealing” gain or benefit from the position bearing in mind that there will be a passing of Accounts.
An executor may be reimbursed for reasonable expenses pursuant to the terms of the Will or the legislation (s88 Trustee Act R.S.B.C 1996, c 494) or by prior agreement with the testator. When deciding to be or not to be an Executor – speak with a lawyer to get the heads up on your obligations.
In a buoyant real estate market like we have in South Delta, many people will want to list their parents’ residence as soon as possible after they pass. Where there is a Will the Executor can usually do that. The Executor has the power to list and sell the estate residence as soon as the Will comes into effect, which is on death. Before the residence can actually transfer to a buyer you will probably need to go through the Probate process, which takes about four months. In the meantime you can:
1. Access the house, change the locks, empty and clean it, and pay the bills.
2. List the property for sale with a realtor.
3. Negotiate the terms of sale and sign a Contract of Purchase and Sale.
Usually the time required to list, sell, and allow the buyer to arranging financing will be enough to get the Probate through. If not then there are several mechanisms for preserving the sale, including amending the closing and possession dates, or an escrow agreement by which the buyers put their down payment into trust and move in early. Note, however, that the situation is different where there is no Will: the “Administrator” – usually next of kin – must apply to the court for the authority to administer the estate of the deceased person, and has no power to do the things listed above until they receive court approval.
If you die without a will in BC you lose control over who gets your estate, who administers it, and who gets custody of your children. While it is not true that “the government gets it all” you may also bring the Office of The Guardian and Public Trustee into your affairs. This can mean increased costs and undesirable results.
Division of an “intestate” estate – no will – is governed by the Wills, Estates and Succession Act of BC. If there is a spouse and shared children the spouse gets the first $300,000 and the balance is divided equally amongst all of the children. Imagine that suddenly a portion of the money you and your recently deceased partner have saved goes to the Public Trustee to be held until your kids reach 19 and then paid to them. Or if you don’t have close family your estate could end up going to distant relations you don’t know or like, instead of local friends and charities.
Another problem where there is no will is that the person who is going to administer your estate is powerless until they get a court order confirming their appointment. It is hard for them to sell property or deal with the banks or pay bills, all of which increases costs. And if you don’t appoint a guardian of your minor children in your will, the courts will decide who should look after them. Not having a will may not be a disaster, but it will likely mean increased costs and a loss of control over your affairs.
Imagine that you’ve devoted years to looking after an aging parent. You’ve put up with her moods and tempers, have kept her fed and healthy, and have sacrificed your own career and happiness, and maybe even that of your family. You’ve never talked about money, but there was always an understanding that, when the time came, she would look after you in her will. Or so you thought.
Now imagine your shock and pain when the will is pulled from her safety deposit box and you discover that she has given everything to the “Vancouver Dog and Cat Home” (a popular example from my law school days; I don’t think it actually exists.)
You aren’t Anna Nicole Smith, and your mom was no billionaire like J Howard Marshall. But you do have a right to justice (if not a cover shot in “People”).
In B.C. we have the Wills Variation Act which allows a court to vary a will to make provision for immediate family – children or spouses (usually divorced or separated, and sometimes common law) – who have been unfairly left out of the will of a parent or spouse. The purpose of the Act is to provide a fair division of the assets of an estate, taking into account the legitimate needs and expectations of children and spouses. A court will consider any legal or moral obligations the deceased had to her next-of-kin and, where the will does not fairly distribute the person’s property, will reapportion the estate.
It is usually easiest for minor children to challenge wills, because the deceased parent likely had a legal obligation to provide for them. The same is true for a separated spouse, especially where there is an ongoing obligation to pay support. More difficult but still possible are the claims of adult children, such as in our example, where an expectation of compensation has arisen. Of course the size of the estate is an important factor; the more property (money or real estate or other possessions) there is, the easier time a court will have of making sure that all legitimate needs are met.
Now let’s look at the case from the deceased mother’s point of view. It is not a foregone conclusion that, in our example, a court would redistribute the estate. For example, it might turn out that while she was living the mother had transferred title to her home to you, her daughter. She thought that you had already been well compensated for your efforts, and the court might well agree.
Will challenges typically arise in blended families. It is a good idea when making a will to consider who might later challenge it, and either include
them, or provide a thorough explanation as to why they are being given less than “fair”. This may be along the lines of “I am leaving my son John out
because he is a no-good drug-taking black sheep who would throw the money away.” This will work better if it is true.
Social media websites like “Facebook”, “Instagram”, “Myspace” and “Twitter” have made life easier for Insurance of British Columbia to investigate you and your claim. When you post something on these social media websites, virtually the world can look at your posts. For example, you may mention, on a social media site that you went on a trip, went skiing, or worked out, or heaven forbid, enjoyed socializing with your friends, etc… In so doing, Insurance of British Columbia will likely find out this information and use it against you. Imagine if Insurance of British Columbia downloads some photographs of you doing an activity and then uses it in Court against you to say you are not injured? Imagine if Insurance of British Columbia starts to interview people that went to one of the events you described on Facebook? Imagine if you mentioned getting drunk with some friends, and maybe posted some pictures of the evening? What would it look like if you posted something considered to not be socially acceptable? In some cases, Insurance of British Columbia investigators have accessed a claimant’s personal information by inventing a “friend” who then contacted them for access. Insurance of British Columbia then searches the sites, looking for photographs, notes, blogs, etc. Their purpose is to find photographs of a claimant in situations that could be damaging to the case in front of a judge or jury (eg. drinking or being drunk at a party, engaging in contact or other sports, traveling for vacations, etc…). Insurance of British Columbia is also looking for notes where a claimant has talked about the case, how s/he is feeling, and what next weekend’s plan may be. Generally, Insurance of British Columbia looks for anything online that will hurt your case. Sometime, Insurance of British Columbia will bring a Court Application to compel production of the social media account contents if they cannot access the information through the back door. This means that even if you maintain a limited number of friends and a tight privacy setting Insurance of British Columbia can get copies of your postings. Therefore, the rule of thumb when posting anything on a social media website is to assume someone from Insurance of British Columbia or the defense team will be reading it. Easiest thing to do is deactivate your account(s) and focus on your recovery instead.
Two of the most important aspects of your Insurance of British Columbia claim are what your doctor tells you and what you tell your doctor. When another driver causes you to suffer injuries or other losses, Insurance of British Columbia is required to make things right by compensating you for your injuries and losses. However, you are also required to take reasonable steps to minimize those injuries and losses. For example, if you suffer a back injury, your doctor might refer you for 12 sessions of physiotherapy. If you choose not to act on that referral but complain of back pain a year later, there’s a good chance that Insurance of British Columbia will argue that you are largely responsible for that continuing back pain since it probably could have been avoided by undergoing the treatment that your doctor had recommended to you. Ultimately Insurance of British Columbia will not be on the hook for persistent injuries that would have resolved had you followed your doctor’s advice.
Paying attention to what you tell your doctor is equally important. While there is some value in simply telling Insurance of British Columbia that you are still experiencing a certain condition or symptom, it is much more valuable to be able to draw Insurance of British Columbia’s attention to the fact that you have repeatedly been making a similar complaint over a period of time. This can only be done if your doctor’s records show that you have continually been making that complaint, and the records will only show the complaint if you have been verbally expressing the complaint to your doctor. To ensure that your records are comprehensive, see your doctor regularly and always be candid about what you are experiencing.
Most of us have seen a television show or movie where a character is surprised by someone handing them an envelope or set of papers accompanied by an emphatic “You’ve been served!” Sometimes a character goes to great efforts to avoid the critical moment in hopes of avoiding the law suit altogether. Drama ensues.
The reality is, or should be, less dramatic. Legal service is often accomplished by having a friend or representative of the plaintiff contact the defendants and arrange for a time and place to deliver the documents.
However, few things are more anxiety-inducing than the realization you are being sued, and the temptation for some people is to create their own movie script and avoid all contact with anyone who might possibly be bearing the legal documents. Agents for my clients over the years have encountered people brandishing weapons, people living in dark houses behind closed curtains and people who refuse to acknowledge their own identity in desperate efforts to avoid being served. Unfortunately for these people, the plaintiff can apply to the court to approve an alternate form of service, such as posting ads in newspaper and online classifieds, and the plaintiff can then continue on without the defendant’s participation in the law suit.
The best approach is to cooperate and accept service of the documents. Resisting service merely increases animosity between the parties and makes you look dishonest. But don’t stop there! Read the documents immediately so you know the case against you, how to respond, and when your response is due, so that you will be able to properly defend yourself against the claim.
If you are in a motor vehicle accident, the Insurance of British Columbia claims adjuster will want you to fill out several forms. The paperwork will include authorizations allowing Insurance of British Columbia to obtain your medical and financial details. If the information they seek is irrelevant, there is no reason for you to sign. For example, if you did not miss any time from work, then why allow Insurance of British Columbia access to your employment file?
The most fundamental document you will sign is the “CL-22 Insurance Claim Application”. The CL-22 contains details about your claim, including the date of your accident. Importantly, this form will ask you to describe the injuries you suffered in the accident. It is essential that you describe your injuries accurately - neglecting to mention an injury may come back to bite you. For example, in a recent case a Plaintiff neglected to mention a hip injury on the CL-22. At trial, the Plaintiff claimed a hip injury which the judge was skeptical about as it previously had not been claimed.
Insurance of British Columbia may also ask you to provide a statement about what occurred in the accident. Your statement will detail the events leading up to, during, and after the accident, including details of your injuries and losses. It is essential that your statement contain an accurate description of what happened. If the other driver’s brake lights were out, your statement must include that fact – otherwise you may later be accused of fabricating that detail.
If you have been injured in a car accident and have lost time from work, you may be entitled to Part 7 Wage Loss Benefits from Insurance of British Columbia.
Section 80 of the Insurance (Vehicle) Regulation provides for payment of total temporary disability (TTD) wage loss benefits if a motor vehicle accident prevents an employed person from working. There are a number of requirements under the Insurance (Vehicle) Regulation for entitlement to benefits, some of which can be summarized as follows:
A person has to have been employed at the time of the accident (note that they need not have been physically working when the accident actually occurred, but must generally have been employed around the time the accident occurred).
The claimant must be totally disabled by the accident from working a job for which the claimant insured is reasonably suited by education, training or experience. The total disability must arise within 20 days of the accident.
Benefits are payable for the duration of the total disability, or 104 weeks, whichever is shorter. The amount of the benefits is capped at $300 per week. There is a waiting period before payment of benefits starts. It is recommended while awaiting a decision from Insurance of British Columbia on approval of disability benefits, that a claimant make a claim under EI Sickness benefits. If both EI and Insurance of British Columbia approve benefits, you must choose one out of the two, not both.
You may have seen Insurance of British Columbia’s new ads on TV that claim “We are in your corner. You can get the benefits you are entitled to. You can settle when you are ready.” What’s going on?
Insurance of British Columbia is running a business, and it is to their advantage to keep costs down. These ads appear to be an encouragement to settle directly with Insurance of British Columbia without seeking legal advice. Why would they suggest that? Because it will save Insurance of British Columbia money. And that's because lawyers generally get more for a case than any inexperienced injured person could. Lawyers know the rules of the game, like Insurance of British Columbia, and unlike most injury victims.
Remember that once you settle you can’t go back later for more money if your injury comes back. And remember that most lawyers offer a free initial consultation. And remember that lawyers usually get more for your case than you will on your own, even after payment of legal fees.
So when you watch Insurance of British Columbia’s ads, ask yourself this question: If they are going to have to write me a cheque, can they really be “on my side”? It costs nothing to get a second opinion.
This is a question every client wants to know, but it is not an easy question to answer at the start of your case. Assessing an injury claim takes time. Your injury is new, and we cannot say whether it will get better, or how soon. How will it affect your life and work? The value of your claim is dependent on many factors:
Whether the accident was your fault, someone else’s, or a mix The extent and duration of your injuries The treatment you required Will you recover fully or partially? How much income did you lose? How much might you lose in the future? The costs of treatment, past and future. Clients often mention friends that got “x” dollars for their injuries. You cannot compare your case to others; every person and every injury is different. There are two main factors when negotiating with Insurance of British Columbia.
Insurance of British Columbia uses an internal guideline when assessing claims. BC courts are not bound by the Insurance of British Columbia’s assessment guide. When lawyers make a settlement offer to Insurance of British Columbia, they rely on the outcome of the many car accident cases that are decided by annual in the courts. If a settlement cannot be reached out of court, these “precedents” will guide how a judge values your claim. Usually we recommend against settlement for at least 12-18 months. The longer your injury lasts, and the longer you wait to settle, the more your case is likely be worth.
Young families looking to protect their children in the event of both parents’ deaths have two main tools to use in estate planning: Guardianship, and Trusts for Minors. A Guardian is a person appointed to look after the minor children if their parents die. Ideally it will be someone in the same community and from the same family – a sibling with children of their own is often the best – but the situation is more challenging where there are no family members, or they live far away, or may be inappropriate. Or don’t want to do it: Make sure you ask your guardian(s) if they want the job before naming them! The appointment of a guardian is not “written in stone” and the courts can always change it to someone more appropriate if the person you have appointed is no longer the best choice for the kids, perhaps because they have died, moved, or no longer want the job.
Most modern wills contain a Trust for Minors provision, in case some part of the estate ends up going to children. Usually their share of the money will be
invested for each child until they are a specified age, now often 21 or 25 years. Your trustee (usually the same person as your executor) will have the
power to dip into the trust fund to pay for things like school, vacations, or living costs while the child is still a minor, and the child gets the balance
after they hit the target age.
You can include or exclude whomever you want in your Will, but BC law allows your spouse or children to go to court to vary your Will. Step-children do not have that right; common-law spouses do.
On a claim to vary a Will, the Court will evaluate whether you gave valid reasons for doing so. The judge will consider the size of the estate, your relationship with the person making the challenge, and the present financial circumstances of all parties. The court is looking for a “moral duty” owed by the will-maker to their family.
If you wish to treat your children unequally or leave a small amount for your spouse, you should attach a detailed memorandum to your Will describing the reasons for your decision. The memorandum needs to be specific; for example, “My child stole money from me and has not seen me in 10 years.” Or perhaps “I already provided my child with many gifts and loans during my life-time.” There is no magic in making a small gift ($1.00 or some other amount) to try to protect your Will.
Only assets that pass through your Will can be challenged. Designated beneficiaries or trusts can avoid probate and thus a challenge to the Will.
Parents often help out their children – down payment on a new home, debt relief – in unequal ways: Not all children have the same needs. How can you make your will fair to the others who did not receive anything during your life? Gifts to children are often made without a clear agreement as to repayment; there may be no more than a vague intention that “we’d like the money back some day”. Or it may in fact be a loan, which the child intended to pay back but never quite got around to. Regardless of the original intention, your Will provides a good opportunity to clear up your intentions with little disruption to your child. There are two simple ways to do this. First, if you intended the money to be an outright gift, simply say so in the Will: “I forgive repayment of any money given to my children – or to my child John – during my life time.” That child will share equally in your Estate. Alternatively, you can even things out with the other children by a simple process called “hotch pot”; that is, bring the gift into the assets of the Estate, and then deduct it from that child’s share as a prepayment. For example, you have three children and a $1M estate. You lent your son $200K as a down payment on his new house. Your executor can add that $200K to your Estate to make it $1.2M. Each child then gets 1/3 or $400K, except your son has already received an advance, and so would receive $200K. An added bonus of this process is that it is fair and so would be hard to challenge in court, even though your children are receiving different amounts from your Estate.
While a separation agreement is not required to be drafted or signed by a lawyer to be valid, do- it-yourself separation agreements are risky. It is very rare that a self drafted separation agreement will contain all the necessary clauses and waivers to effect a division of family property and debt or to successfully implement a desired parenting arrangement. This can lead to problems enforcing the agreement later on if your spouse does not follow what was agreed to. As well, if the child support and parenting sections are insufficient, this may delay or prevent you from obtaining a divorce until it is rectified. This is because you are required to prove that adequate arrangements have been made for the children before a divorce will be granted It is important that you and your spouse get independent legal advice on any separation agreement you sign so that you are informed of your rights and understand the agreement. Independent legal advice can protect you in the future should your spouse try and vary what is in the agreement.
On March 18, 2013 the Family Law Act replaced the current Family Relations Act resulting in significant changes to family law in British Columbia. One of the biggest changes is that common law couples will be governed by the same property division as married couples upon the breakdown of their relationship. Common law couples, for the purposes of property division in the Family Law Act, include two people who have lived in a marriage like relationship for at least two years. The presumption is that upon a relationship breakdown each partner will be entitled to one half of any ‘family property’ and increases in value of ‘excluded property’. If you want to set out a different arrangement for property division then a cohabitation agreement is the way to do so. A cohabitation agreement can also include details of how each party will contribute financially during the relationship and the terms of spousal support, if any, should the relationship breakdown. Every cohabitation agreement needs to be specific to your situation so it is essential that you consult a lawyer for advice before drafting and signing any agreements.
The answer depends on whether you already have a separation agreement or court order that requires him/her to pay child support. If you do, you can register with the Family Maintenance Enforcement Program (FMEP) and they will monitor and enforce payments. There does not have to be a history of late or missed payments in order to register. The FMEP can also help collect the arrears that are outstanding at the time of registration. Sometimes the wording of your agreement or order is insufficient for the FMEP to enforce the terms and you will need to take extra steps to obtain a revised order or agreement with adequate terminology. You should consult a lawyer for legal advice if you have questions about the wording.
If you do not have a child support order or agreement then the FMEP will not be able to help you. I recommend that you speak with a lawyer to discuss your entitlement to child support, the possibility of your ex paying retroactive support, and the process of obtaining a court order or agreement.
In order to get a divorce you must start a court application by filing a Notice of Family Claim in the Supreme Court of British Columbia. You can apply for a divorce on the basis that you have lived separate and apart for at least one year. Your spouse must be served with the filed application and he/she has 30 days to file a Response. If no Response is filed, or your spouse consents, the divorce can proceed by way of a desk order application upon filing the proper documentation. However, it can take several weeks to process. A divorce is official 31 days after the date the judge signs the divorce order.
There are several components to a divorce application and the forms must be filled out correctly in order to be successful. I recommend that you consult a lawyer for legal advice about your specific circumstances and to make sure everything all your forms are in order.
Whether or not you are entitled to spousal support will depend on several factors, including the roles that you and your partner each took on during the relationship. If you are not currently employed, your ability to earn income and become self supporting will be examined. A difference in incomes does not automatically result in an entitlement to spousal support.
If it is established that you are entitled to spousal support, the amount and duration of support is then determined. The Spousal Support Advisory Guidelines are generally used to calculate a range for the amount and duration of support. Where you fall on both ranges is determined by your specific situation. The Guidelines take into account several factors including each spouse’s income, your ages, the length of your relationship and whether there are children for which child support is payable. Depending on your situation spousal support may be time limited or reviewed after a specific event or set period of time.
I suggest you contact a lawyer for legal advice regarding your potential claim in order to obtain an opinion based on your specific circumstances.
You have two years from the date of your injury to decide. Once you settle your case you cannot reopen it if your problems come back or new ones arise. Patience is a virtue and time is money; generally the longer you wait for settlement, the better settlement will be. Your lawyer will get all the medical and income information available and start negotiations with Insurance of British Columbia. Some cases settle quickly and some can be complicated and can take months or even years between offers. If you overvalue your case it will take longer to reach agreement. Sometimes people do not want to let go of the fight, regardless of the consequences. But settlement can bring relief and an improved emotional state. If you have to sue, be prepared to attend an Examination for Discovery where you will be questioned extensively about your medical history and your life. If you and Insurance of British Columbia see your case very differently, then you may go to trial to have a judge or jury decide. Most cases settle because the costs, risks and emotional upheaval of a trial are too much for many people. There is no easy answer to the question “settle or sue”; as you proceed you must continually reevaluate that question with professional guidance.
There are two main reasons to incorporate: limiting liability and tax benefits. An incorporated business is a separate legal entity, which limits your personal liability in the event that something goes wrong. If creditors start chasing your company for outstanding bills, or a client sues your business over a problem with your product or service, being incorporated means your personal assets, such as your home and your car, are beyond their reach. There are exceptions to this protection, such as personally guaranteed loans and government tax obligations.
The two main tax benefits to incorporating are tax deferral and income splitting. Earning income through a corporation instead of as an individual allows for tax to be deferred. Small businesses enjoy low tax rates on business income which offers tax advantages for reinvesting in your business. Tax on business income is deferred until the income gets moved out of the business to shareholders by way of a dividend.
Income splitting allows your family members to hold shares of the corporation even though they are not active in the business. If those family members are taxable in a low-tax bracket, then the family as a whole will pay less tax than if you had earned all the income personally. The major drawbacks of incorporating a small business are financial. Incorporating costs money. Incorporated businesses must file more paperwork, such as separate tax return and annual filings with BC Registry Services. Another drawback is that losses in an incorporated business cannot be personally claimed.
If you are starting a business with anticipated losses and few legal risks, you may want to delay incorporating your business until it has become profitable enough to afford the costs of incorporation and to take advantage of the available tax savings and deferrals.
Buying a home is a big deal. For the vast majority of people it’s the single largest investment they’ll ever make. While real estate transactions might appear simple, they are often rife with potential legal problems. The big difference between lawyers and notaries is that only lawyers can advise you on legal matters and represent you in disputes. A lawyer will identify any potential legal issues and work to resolve them before they become problems.
Hiring a lawyer early in the home-buying process can save you time, risk, and money. At the outset of the deal, your lawyer will review the contract to prevent you from agreeing to something that is not in your interests, and to ensure there are no legal issues in the contract that may prevent the deal from closing. Once the contract is finalized, your lawyer’s job is to make sure that you obtain what you contracted to purchase. Most importantly, this means making sure that you obtain good title to the property, free from any outstanding charges, liens, debts, or other encumbrances that may affect your use and enjoyment of your home. Your lawyer will make sure you don’t also buy someone else’s legal problems or debts when you buy your home. Buying a home may be the largest investment of your life. It pays to hire an expert to protect this investment. A lawyer will help you get what you bargain for, at the price you agree to pay, and on the terms you understand.
Young families are usually too busy thinking about life – paying the bills, getting the children to school and soccer – to think about death and estate planning. Wills for young families are less about leaving a legacy, and more about looking after the little ones if their parents should die. This is done in two ways. First, your Will should contain a “Trust for Minors”, so that if you and your partner die any money you have is left to your kids in trust until they are of age (at least 19, though commonly 21 or 25). You can select a person that you think would manage your estate with love and compassion towards your children – often a sibling or close friend - instead of the somewhat impersonal “Office of the Public Guardian and Trustee” and Family Services if you don’t have a Will.
You can also appoint a Guardian to look after your children if you are not there to do so. Ideally a Guardian will be someone the kids know, maybe an aunt or uncle or close friend with children of similar ages. You could consider making a reciprocal deal with a friend for each to agree to be the Guardian of the other’s children. Guardianship is not set in stone; the Courts always have the last say as to what is in the best interests of the children. And that’s a good thing; if the person you appointed has moved away, or is ill, they may no longer be the best choice. Also consider whether to appoint the same person as both Trustee and Guardian; on the one hand that is convenient, as the person spending the money is the same person managing it. On the other, perhaps some separation is best, so that they person with the kids has to justify what they will spend their money on to a separate trustee. Every case is different, and a creative look at your family circumstances is the place to start when planning to safeguard a young family hit by tragedy.
They used to be called “Drugstore Wills”, but now you can get them off the Internet for free. As the saying goes, “you get what you pay for”.
DIY Wills are perfect if you don’t own anything, don’t have any close relatives or friends, and would like your estate to go to legal fees. I see lots of them in my practice, and they are almost NEVER successful. Common mistakes are not having two witnesses, not having both witnesses in the room to watch you sign, or leaving out important things, like who your estate is going to! Yes, it is not uncommon to see a Will without any actual gift of the person’s estate.
Making a Will is more than filling out a form. Most people would benefit from the advice they receive from lawyers and notaries. There may be better ways of making a gift than through a Will. There may be tax implications. Who are the best people to appoint as executors? Will there be problems if a child is disinherited? And the formalities of signing a Will must be followed carefully or it will be useless.
Many people who try to DIY also miss any consideration of pre-death representation. Powers of Attorney and Health Care Representation Agreements are as important as a Will, as they can affect your quality of life.
But if this doesn’t convince you, that’s fine: Delta Law Office also handles estate litigation cases, and DIY wills are a great source of business. As another saying goes, “you can pay a lawyer now, or pay him much more later”.
Seniors wanting to do their estate planning – Will, Power of Attorney Administration, and Health Care agreement – often come in with an adult child. That is normal, but it can create problems. A Will is not valid unless the maker understands what they are doing, and is acting out of free will. A red flag goes up when I hear “My mom wants …” It may be that they have discussed it all before, and it really IS what mom wants, but I need to hear that for myself. I start off asking for simple information – address, birth date – to help me judge the senior’s mental capacity, and it is easier if the son or daughter does not jump in to “help”. And I need to hear from mom details, such as who is in her family, approximately what she owns, and who she wants to get it. That gives me confidence that it is truly her wishes going into the Will. It helps if her wishes are what you might expect, so that all her estate goes equally to the kids. If it is all going to the one who is sitting there, then I am going to have to ask that person to step out while I confirm. If I don’t think the senior truly wants to do what I am being told, or if she is no longer sure once she is alone, I may – rarely – refuse to act.
If you are an adult child coming in with an aged parent, it is most appropriate to discuss their intentions before they come in. But please, let me speak to them directly, don’t answer for them, and if I ask, allow us to have a few minutes in private. It will make the Will less open to a challenge from a disappointed sister or brother, and give your parent the respect and decency they deserve.