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

, ,

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.

/by

Accessing Shareholder Information under British Columbia’s Business Corporations Act: A Legal Overview

,

In British Columbia, a common question is accessibility to a company’s list of shareholders (actually called the “central securities register”). This article will explore who can request this information and the necessary steps to obtain it.

Accessing Shareholder Information: Who Can Request?

The first question that arises is: who has the right to request a copy of a company’s central securities register? The answer is relatively straightforward: any person can apply to a company for a list of the names and addresses of shareholders and the number of shares of each class or series of shares held by each of the shareholders.

Obtaining the Central Securities Register: The Process

To receive a copy of the central securities register, the requesting party must follow a structured procedure. First, they must submit a written application under section 49(1) of the British Columbia Business Corporations Act (BCA) to the company or the person who has custody or control of the central securities register. Alongside the application, an affidavit must be included, providing the applicant’s name, mailing address, and a statement affirming the limited use of the list.

The applicant must confirm that the list of shareholders will only be used for specific and limited reasons: to influence the voting of the shareholders of the company at a meeting of shareholders; to acquire or sell securities of the company; to use in an amalgamation or similar reorganization process involving the company; to call a meeting; or to identify the shareholders of an unlimited liability company. Any other use of the list is unacceptable and not permitted by the BCA. Finally, a prescribed fee, which can go up to $0.50 per page as per the Regulation, must be paid. An affidavit is a written statement the writer has sworn or affirmed that the contents are true. You can have a lawyer or a notary assist you to swear or affirm an affidavit.

Company Obligations and General Inspection Rights

Once an application is received, the company or controlling party must act promptly, providing the requested list up to a date specified in the list that is not more than 14 days before the application’s receipt date. The delivery method should be as agreed upon, or if no agreement exists, by mail or for pick-up by the applicant.
In addition to specific provisions regarding central securities registers, the BCA grants some general inspection rights to certain individuals. Current directors have the right to inspect records without charge. Any person, including the public, may inspect a company’s central securities register during statutory business hours, with an inspection fee capped at $10 per day. Companies also have the option to impose restrictions on inspection through ordinary resolutions.

Additional Considerations and Conclusion

It is crucial to consider the company’s Articles, as they may contain provisions regarding who can inspect corporate records. Additionally, if the company is an amalgamating foreign corporation, specific regulations apply. Certain types of companies, such as public companies, pre-existing reporting companies, community contribution companies, and financial institutions, may grant broader public access to their records.

In conclusion, access to a company’s central securities register in British Columbia is governed by specific rules and regulations outlined in the BCA. While any person can request this information, they must follow a formal application process, include an affidavit, and pay a prescribed fee. Companies and controlling parties have clear obligations to provide this information, ensuring transparency and accountability in corporate affairs. It’s also important to be aware of general inspection rights and any additional provisions in the company’s Articles that may impact access to records.

/by

How to Revoke a Will?

, ,

What do you do if you have made a Will, but you have changed your mind and you want to revoke it?

You have a few options to revoke a valid Will. You may choose to make a new valid Will that contains a clause that revokes all previous Wills.

You also may burn the Will, tear it up, or otherwise destroy it with the intention of revoking it, or instruct someone to destroy it with the intention of revoking it.

There is also the option for you to make a writing that declares your intention to revoke all or part of your Will. If you make a writing stating your intention to revoke all or part of your Will, in addition to being in writing, it must be both signed by you at its end and signed by 2 or more witnesses who must be present for your signature.

In addition to the above, if you have an electronic Will, you may revoke it by deleting the electronic version of the Will with the intention of revoking it.

You should be cautious that you do not accidentally revoke a Will when you do not intend to.

If an original Will was last in the possession of the will-maker and it cannot be found when the will-maker dies, the presumption is that the will-maker destroyed it with the intent to revoke it. This can be avoided by ensuring that the original Will is kept in a safe place that is known to the executor, such as in a lawyer’s office.

Did you mean to ask How to make changes to a Will? Click to Read more.

How to make changes to a Will?

/by

Is a Power of Attorney (POA) that I made in Alberta valid in British Columbia?

, ,

Section 38 of the British Columbia Power of Attorney Act provides that a POA “made in a jurisdiction outside British Columbia” may be deemed to be an enduring power of attorney if it meets certain requirements set out in Regulations, s. 4.

In order for a legal document that was made in a jurisdiction other than BC to be deemed an enduring power of attorney and effective in BC, it must be accompanied by a Certificate of Extra-Jurisdictional Solicitor which must be completed by a solicitor/lawyer in the other jurisdiction.

The lawyer must certify:

(1) That the document grants a power of attorney that continues to have effect while, or comes into effect when, the adult is incapable of making decisions about the adult’s financial affairs: Regulations, s. 4 (2) (a);

(2) The enduring power of attorney was validly made according to the laws of the jurisdiction in which the person was ordinarily resident and the instrument was made, and that the instrument continues to be effective in the jurisdiction in which the instrument was made: Regulations, s. 4 (2) (c) and (d); and

(3) The adult was “ordinarily resident” outside British Columbia but within Canada, or within the United States of America, the United Kingdom of Great Britain and Northern Ireland, Australia or New Zealand: Regulations s. 4 (2) (b).

/by

Under what circumstances can attorney named in a Power of Attorney (POA) be removed if I am incompetent and legally unable to remove them?

, ,

The POA is terminated when the attorney:

(1) Is the adult’s spouse and their marriage or marriage-like relationship ends;

(2) Becomes incapable or dies;

(3) Is bankrupt;

(4) Is a corporation and the corporation dissolves, winds up, or ceases to carry on business; or

(5) Is convicted of a prescribed offence or an offence in which the adult was the victim: British Columbia Power of Attorney Act s. 29(2)(d).

Under an enduring POA, if a donor becomes incompetent, the authority of the attorney continues. However, a complaint can be made to the British Columbia Public Guardian and Trustee (“PGT”) and/or a claim made to the Supreme Court for review of accounts and possible removal of an attorney.

If a General POA ends upon the incompetency of a donor, and a Committee is not appointed, then the PGT may be appointed as committee of the adult’s estate by default: British Columbia Patients Property Act.

/by

Does the Power of Attorney (POA) cover medical decisions on my behalf? What does it cover?

, ,

A British Columbia POA does not cover health matters or personal care but is the primary tool for personal planning regarding finances, property, and legal affairs.

On the other hand, Representation Agreements are limited to health care and personal care, except for the limited purpose of routine financial matters in agreements made under s. 7 of the British Columbia Representation Agreement Act.

 

/by

What are the legal responsibilities of an attorney named in a Power of Attorney POA?

, ,

An attorney under a POA must act in the best interests of the adult while taking the adult’s best wishes and values into consideration: British Columbia Power of Attorney Act s. 19(2). Section 19 of the British Columbia Power of Attorney Act provides that when acting as an attorney (unless the POA specifically provides otherwise) the attorney must:

1) Act honestly and in good faith;
2) Exercise the care, diligence, and skill of a reasonably prudent person;
3) Respect any limitations in the Power of Attorney;
4) Keep a record of all dealings with the property, including all bank and investment accounts; this includes but is not limited to, maintaining a list of the properties and liabilities, the estimated value of the properties, invoices, bank statements, and all records about how the attorney exercises authority as an attorney. The attorney may be required to produce those records (and provide copies) at any time;

5) When making decisions about finances, the attorney must take into account:
a. The adult’s current wishes;
b. The adult’s known beliefs and values; and
c. Any directions given in the POA document;

6) When managing finances, give priority to the adult’s personal care and health care needs, to the extent reasonable;
7) Invest property only as directed by the British Columbia Trustee Act, meaning the attorney must invest only in property or security in which a prudent investor might invest;
8) Foster the adult’s independence and encourage the adult’s involvement in any decision-making that affects the adult, to the extent reasonable;
9) Keep the adult’s personal effects at the adult’s disposal, to the extent reasonable; and
10) Keep the adult’s property separate from the attorney’s property unless the property is jointly owned by the adult and their attorney (and was held jointly before the attorney was named), or has been substituted or derived from jointly owned property.

According to section 20 of the British Columbia Power of Attorney Act, an attorney may make a gift or loan from the adult’s property if the enduring POA permits the attorney to do so or if

(a) the adult will have sufficient property remaining to meet the personal care and health care needs of the adult and the adult’s dependants, and to satisfy the adult’s other legal obligations if any;

(b) the adult, when capable, made gifts or loans of that nature; and

(c) the total value of all gifts and loans in a year is equal to or less than a prescribed value.

According to the Power of Attorney Regulation, BC Reg 20/2011, s.3, prescribed means the lesser of 10% of the adult’s taxable income for the previous year, or $ 5,000.

/by

Does an attorney named in a Power of Attorney (POA) get paid and if so how much?

, ,

Section 24(1) of the British Columbia Power of Attorney Act provides that an attorney can be compensated if the POA expressly authorizes the compensation and sets the amount or rate. An attorney may be reimbursed from an adult’s property for reasonable expenses properly incurred in acting as the adult’s attorney: torney Act, s. 24(2).

An attorney can be compensated on the basis of an hourly rate if it is expressly set out in the POA document.`

An appointed attorney such as a bank or trust company may charge annual fees for the ongoing administration of assets that is equal to a percentage of the market value of the estate assets along with an annual fee, again based on the value of assets under its control

/by

How do I revoke an appointment under a Power of Attorney (POA)?

, ,

If capable, an adult can revoke an appointment under a POA: British Columbia Power of Attorney Act, s. 28(1). In order to revoke a POA, the adult must give written notice to each attorney: British Columbia Power of Attorney Act s. 28(2).

This notice is called a notice of revocation and a donor must give the notice of revocation to any financial institutions or other third parties where their attorney may have acted for them. A revocation is effective when notice is given or on a later date stated in the notice: British Columbia Power of Attorney Act, s. 28(4).

To cancel a POA dealing with land, a donor must file a notice of revocation with the Land Title Office where the land is registered.

/by

What are considerations for the maker of a Power of Attorney (POA) in who they appoint?

, ,

Considerations for the maker of a POA in who they appoint can include choosing the right attorney and/or choosing more than one attorney. Adults should consider whether appointing more than one attorney may unnecessarily complicate the management of the adult’s affairs. Section 18 of the British Columbia Power of Attorney Act deals with the situation where a power of attorney assigns authority to multiple attorneys. If more than one attorney is chosen, the POA should set out how a conflict between attorneys is to be resolved. For example, some POA’s state that if a unanimous decision cannot be reached, it will be resolved by mediation, and failing that, arbitration. If there is a deadlock between jointly appointed attorneys, the attorneys may have to seek relief from the court pursuant to the British Columbia Power of Attorney Act, s. 36(1)(a). This may include an application to remove a joint attorney or make them an alternate.

The British Columbia Power of Attorney Act prohibits certain persons from acting as an attorney, which include:

(1) an individual who provides personal care or health care services to an adult for compensation unless the individual is a child, parent, or spouse of the adult; and

(2) an employee of a facility in which the adult resides and through which the adult receives personal care or health care services unless that employee is a child, parent, or spouse of the adult.

Other considerations for the maker of a POA in who they appoint as an attorney may include whether they can trust the person they are appointing and whether the person they wish to appoint is good with finances. The majority of cases involving claims brought against an attorney relating to misappropriation of funds or self-dealing on the part of attorneys, most often when the donor is no longer competent and the power of attorney at issue is enduring.

Often, a person may appoint a corporate body, such as a Trust Company to be their attorney. There may be a number of reasons for doing this including one person acting as an attorney can create family conflict or renew existing family discord and an attorney may feel pressure from other family members or friends to act in a way that is not consistent with what the donor would have wanted; fear of an attorney’s self-dealing; a lack of expertise on the part of the person named under the POA; it eases the burden on friends or family; the donor has no family or friends to act as their attorney.

According to section 4 of the British Columbia Power of Attorney Act, a corporation may empower a person as its attorney to execute deeds or documents on its behalf. This may be used where a Director or Officer is unavailable to sign documents.

/by