An executor's legal fees can be paid out of the estate's assets, and not by the executor personally.
Most cases settle out-of-court settlement prior to trial, either through negotiation, mediation, or arbitration.
Lawyers bill on a monthly basis, based on the lawyer’s hourly rate (plus taxes) for the time spent on your case. Clients who want an estimate in advance of the total fees are bound to be disappointed because, in most cases, it is extremely difficult to give a reliable estimate.
The deceased individual's estate is divided pursuant to the Wills, Estate and Succession Act (WESA). The spouse gets the family home and a certain amount of the deceased's estate (depending on whether the deceased had children). Someone, usually a family member, will have to apply to court for letters of administration to administer the estate.
Probating a will means applying to court to establish that a deceased person’s will is valid. This is a necessary step before estate administration, and is often required by banks, the land title office, and other institutions. Probate may not be necessary where the deceased left only assets that were jointly held or had designated beneficiaries.
Obtaining a grant of probate usually takes 3-4 months from when the application is received to to being approved by the Probate Registry. Once approved, administering the estate can take anywhere from six months to two years. Delays usually come from court processing and obtaining tax clearance certificates.
Executors have the difficult task of carrying out the last wishes of the deceased. Often a testator has named his or her choice of executor in a will. The person designated as executor then has to carry out the testator's instructions as stated in the will. These duties involve complex processes. It is advisable to seek the help of a lawyer when administering an estate.
An executor must first obtain a grant of probate (if the deceased had a will) or letters of administration (if there was no will). An executor must take a complete inventory of the estate’s assets, sell those assets, file a final tax return, pay the estate’s debts, and distribute the remainder of the estate to the beneficiaries.
Executors are in a position of trust, and therefore have a fiduciary duty towards the estate. An executor who fails to properly carry out fiduciary duties can expose him or herself to liability. An executor may be liable if they dispose of the estate’s assets improperly, fail to pay the estate’s debts, or fail to properly distribute estate funds to beneficiaries.
Contesting a Will
A will-maker can disinherit a spouse or a child in their will. However, a will-maker has an obligation to leave “adequate provision” for the family they leave behind. BC’s Wills, Estates and Succession Act (WESA) allows a spouse or a child to apply to vary the terms of a will and provide them with an adequate inheritance.
A will-maker is entitled to disinherit a spouse or children if there is a good and rational reason. For instance, if a child and his or her parent were estranged for a long period of time, that may qualify as a valid reason. However, a disinherited child or spouse is entitled to apply to court to vary a will. It is advisable to get the opinion of an estate litigation lawyer to determine the validity of a claim.
A will can be defective or invalid if the will-maker lacked the mental capacity at the time the will was made, if the will was improperly executed or did not have two individuals witness the signature, if there was undue influence on the will-maker, or if language of the will is too vague to be upheld.
Adult guardianship is the process by which a person gives up control over their own property or their ability to manage their own affairs. This may be necessary due to intellectual disabilities, mental illness, brain injuries, or illnesses like dementia. There is legislation in BC which is intended to protect vulnerable individuals or are incapable of making decisions on their own.
The Adult Guardianship Act regulation states that a person is incapable of managing their affairs if a qualified health care provider determines that:
(a) the adult cannot understand the nature of the adult's financial affairs, including the approximate value of the adult's business and property and the obligations owed to the adult's dependants, if any;
(b) the adult cannot understand the decisions that must be made or actions that must be taken for the reasonable management of the adult's financial affairs;
(c) the adult cannot understand the risks and benefits of making or failing to make particular decisions, or taking or failing to take particular actions, in respect of the adult's financial affairs;
(d) the adult cannot understand that the information referred to in this subsection applies to the adult;
(e) the adult cannot demonstrate that he or she is able to implement, or to direct others to implement, the decisions or actions referred to in paragraph (b).
A private citizen, usually a close relative, can apply to the British Columbia Supreme Court to become a committee (a guardian) for an adult who can no longer manage their own affairs. The Public Guardian and Trustee can also become a person’s guardian through an administrative process.