Estate Planning & Administration FAQs

 

When should I update my Will?

 

A Will should be reviewed periodically to ensure that no changes are required in order to reflect new circumstances in the testator’s life. There are myriad changes that might require an update to the Will, including:

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• The death of a person named as executor;

• A new child;

• A new marriage or divorce;

• The acquisition of a recreational property such as a cabin;

• A new or closed business; and

• A change in the testator’s wishes with respect to asset distribution among the named beneficiaries.

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A Will that is not up to date is vulnerable to challenges, and it may be an obstacle with respect to obtaining probate from a court. It is recommended that you review your Will regularly, update it as necessary, particularly if any of the major life changes listed above become applicable.

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What is the difference between an Enduring Power of Attorney and a Representation Agreement? 

 

An enduring power of attorney is a document that gives an individual, or multiple individuals, the legal right to make financial and legal decisions on your behalf if you are unavailable to act on your own behalf. A power of attorney can be broad or specific, limited to a particular transaction or type of transaction, or it can be unlimited, depending on your needs. It is important to note that a power of attorney will terminate if you become mentally incapable to make decisions. For this reason, it is recommended that people obtain an enduring power of attorney, which grants authorization to your selected attorney(s) to continue to act on your behalf even in the event of your permanent incapacity.

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A representation agreement grants the authority to someone you trust to help you make, or make on your behalf, decisions regarding your personal and health care. A representative appointed under such a representation agreement is legally obligated to act in accordance with your expressed wishes, or in your best interests if your wishes are unknown. For this reason, it is advisable to also execute an advance directive, which will detail your wishes with respect to medical care in writing and act as a guideline for your representative should it become necessary.

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What is an advance directive?

 

An advance directive is a written and binding plan that reflects the medical treatments a person wishes to consent to, or refuse, based on their personal beliefs and values. The document is intended for use if a person is unable to express their wishes due to lack of capacity. A representation agreement can form part of an advance directive.

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Is it mandatory to obtain a Grant of Probate for an estate?

 

In most cases, yes. A Grant of Probate is necessary for an executor to access and secure the assets of the deceased, including bank accounts, personal property and real estate holdings. In rare circumstances where all of the assets are held jointly or designated to specific beneficiaries, it may be possible to avoid probate, but most estates are not designed in this way.

 

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What is a Grant of Administration?

 

In cases where a person dies without a Will (intestate), or where there is a named executor in a Will but that person is unable or unwilling to act as executor, it will be necessary for a new executor to apply to the court for a Grant of Administration. Once approved, the executor can step in to complete probate and distribute the assets of the estate in accordance with the will, if there is one, or in accordance with the laws of succession if there is not a valid will in place.

 

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If I am named as an executor in a Will, am I required to fulfil the role?

 

No. If you are unable or unwilling to act as an executor, you are allowed to refuse the responsibility. A new executor will be required to obtain a Grant of Administration from a court in order to act in the capacity in your place. For those who wish to have an experienced estate lawyer act as executor in their place, Cherkowski Marsden LLP offers executor services as part of our regular estate administration practice.

 

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What can I expect to pay for probate fees?

 

Fees are waived for any estate valued at less than $25,000 and are not charged on the first $25,000 of an estate valued higher. When the assets are valued at more than $25,000, fees are calculated as follows:

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• For the first $25,000-$50,000 in value, $6 for each $1,000 (or part of $1,000), plus

• For any value over $50,000, $14 for each $1,000 (or part of $1,000).

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For example, if an estate has a total value of $500,000, the probate fee calculation would be:

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The first $24,999 = $0

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The value from $25,000 – $49,999 ($6 x 25) = $150

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The value from $50,000 – $500,000 ($14 x 450) = $6,300

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Total probate fee = $6,450