Why You Should Hire an Estate Lawyer When You Are the Executor

Paine Edmonds - Wednesday, October 10, 2018

Not only does administering an estate add a strain on your time but it also can be a very complex matter. Not only are there legal procedures to follow but in some situations personal relationships can be put at risk if mistakes are made. This can be especially true if there are concerns about the Will, the testator’s true intentions, the type and size of assets, liabilities which can add complexity, and how many beneficiaries there are as well as who they are.

As part of the executor’s responsibility to administer the estate, they have a duty to act in the best interest of the estate and to fulfill the deceased’s wishes. Sometimes, it can be difficult to determine whether an executor’s proposed action in administering the estate is in the estate’s best interest or if there is a more efficient way to proceed with the duties. An estate lawyer is ideal for advising the executor in such matters as well as other unexpected issues that may arise:

  • Will A lawyer can assist in reviewing and confirming that the Will is properly prepared and executed and that it is the testator’s final Will. Further, the lawyer can help by notify beneficiaries, including determining who is entitled to a copy of the entire Will and who is entitled to see a portion of it.
  • Assets Legal counsel can conduct a detailed inventory of the assets and liabilities of the estate and advise on the best way to protect the estate assets.
  • Creditors The law firm can advertise for creditors, including publishing a notice in the BC Gazette, advising of the death and need to settle any outstanding debts. The lawyer can help to ensure that the appropriate creditors are paid or that the deceased’s debts are negotiated down to settle the matter.
  • Probate The lawyer can determine what assets are included and excluded for probate, and submit to the court the application for probate properly.
  • Taxes The law firm can also notify Canada Revenue Agency (“CRA”) of the death, arrange for tax filings, deal with any subsequent CRA issues, and obtain the necessary tax clearance certificate(s) from CRA.
  • Distribution An estates lawyer will seek to protect you legally by preparing a release for all the beneficiaries to sign prior to any partial or final distribution.
  • Actions If any claims are filed against the estate, the estates lawyer can examine the claim and may represent the executor for a defence in the proceeding. For example, in Persall v. Stromberg, 2015 BCSC 1826 (CanLII), the deceased left his entire estate to his common-law partner to the exclusion of his two daughters. The daughters brought an action against the estate for a share of the estate, but the sole beneficiary’s lawyer was able to defend these claims. The beneficiary’s lawyer discovered the estranged relationship between the father and daughters and argued that the deceased had no moral obligation to provide for them in his final Will. The court found in the defendant’s favour and upheld the testator’s reasons for disinheriting his children.
  • Issues with Co-Executors Sometimes, a testator will appoint joint executors in an attempt to show equality between their children. However, since executors are bound to act in the “best interest of the estate”, disputes can arise between joint executors as to what this exactly means. For example, in Estate of Forbes McTavish Campbell, 2015 BCSC 774 (CanLII), the deceased named his three children as co-executors. When one of the three executors began taking the testator’s property without consulting the co-executors, demanding payments from them, and refusing to work together to administer the estate in a timely manner, the other executors retained an estate litigation lawyer to remove the first executor from the role. The court removed the executor in question, finding that he was not acting in the best interest of the estate and he rather was acting in his own best interests. Without the assistance of the estate lawyer, the co-executors may have been locked in a standstill indefinitely.
  • Documentation Another function of the lawyer is to properly document all decisions, steps taken and financial transactions in case any dispute were to arise in the future. This can be especially helpful since the record is produced by an impartial third party instead of the executors or beneficiaries.

Contact Paine Edmonds LLP for an Estate Lawyer in Vancouver

The death of a loved one is a difficult time and coupled with the responsibility of administering an estate can be quite trying. An estate lawyer can perform numerous tasks and provide legal advice regarding the estate along every step of the way to ensure your comfort and certainty about how the estate administration is proceeding. An estate lawyer in Vancouver can advise about what to do if litigation ensures and whether and when the estate is ready for a final distribution. Don’t hesitate to call us 1-800-669-8599 to set up an appointment. Our estate lawyers in Vancouver are ready to serve you.