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The Role of an Estate Lawyer After Death in British Columbia

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Working with an experienced estate planning lawyer is the best way to avoid probate mistakes and minimize the potential for disputes among your loved ones after your death. A comprehensive, well-thought-out estate plan lays the groundwork for a smooth transfer of wealth and estate assets.

An experienced estate lawyer can play a significant role in ensuring things go smoothly after death. The complicated legal process and sheer number of tasks and responsibilities involved in estate administration can be overwhelming for the executor named in the will, or the administrator appointed if the deceased person died without a will. The challenge is even greater when that person is simultaneously grieving the death of a close friend or family member.

The legal experts at Onyx Law Group regularly assist clients with applications to obtain a Grant of Probate from the British Columbia Supreme Court. We provide legal advice to executors, administrators, and trustees on their duties and responsibilities every step of the way to administer estates and trusts. We can help navigate the process from beginning to end and handle both contentious and non-contentious estate matters. Contact us to get a free consultation today for practical advice and effective solutions from our estate and litigation lawyers.

What Does an Estate Lawyer Do After Death?

What Does an Estate Lawyer Do After Death?

An estate lawyer gives valuable advice, anticipates problems, and provides solutions when issues arise in the estate administration process. A qualified, experienced estate lawyer can also do some of the heavy lifting to ease the burden on the executor or administrator. In addition to helping executors, administrators, and trustees navigate the probate process, estate lawyers can also represent beneficiaries or others with a financial interest in the estate should legal disputes arise after a death.

Different Types of Legal Experts

The role of an estate lawyer depends on your needs and their area of expertise:

  • Estate planning lawyers advise clients on incapacity planning and succession planning, including preparation of wills, trusts, powers of attorney to manage money, property, business, taxes, etc. on a person’s behalf, and Representation Agreements for health care decisions.
  • Probate lawyers assist clients in administering estates and trusts, guiding them through the complicated probate process and addressing probate matters that can arise in even seemingly simple estates.
  • Estate litigation lawyers represent clients involved in legal disputes after a person’s death. Litigation may be necessary for many reasons, including questions about the validity of the will, allegations of fraud or misfeasance, inheritance theft, and allegations of unjust exclusion from an estate (disinheritance). An estate litigation lawyer must have extensive knowledge of estate law, family law, probate matters, and the procedural steps involved in civil litigation.

What Is an Executor? Is It the Same as an Estate Lawyer?

The executor is the person or people chosen by the will-maker to act on the will-maker’s behalf after their death. The executor is legally obligated to carry out the wishes outlined in the will and can have personal liability for failures in administering the estate. An executor has many duties and responsibilities, including organizing the funeral, paying debts owed by the deceased person’s estate, obtaining a Grant of Probate (if probate is necessary), filing returns and paying income taxes, and distributing assets to beneficiaries.

The role of an estate lawyer, on the other hand, depends on the reason for their hiring and who they represent. For example, an executor may hire an estate lawyer for advice and assistance with the probate process. In that situation, the estate lawyer acts for the executor, not for the deceased person’s estate generally or for the beneficiaries of the estate.

When an executor hires an estate lawyer, the lawyer will handle the legal work, including preparing court forms and affidavits and appearing in court on the executor’s behalf. The lawyer can also manage certain tasks in the administration process on behalf of the executor.

When Is an Estate Lawyer Necessary?

When Is an Estate Lawyer Necessary?

It’s possible to administer an estate without an estate lawyer, but most people stepping into the role of executor hire an attorney. Most people have no experience with the probate process and feel overwhelmed by the massive responsibilities that come with the executor’s role. It’s strongly recommended that an executor hire a lawyer to advise on legal matters and assist with the legal work involved in administering an estate, even if the estate seems straightforward. Generally speaking, the estate lawyer’s fees are paid out of the estate, not by the executor personally.

In certain situations, an executor should get advice from an estate lawyer right away, such as when the executor is uncertain about their duties/the legal process, the estate involves trusts, foreign assets, business holdings, large investment portfolios, etc., when unforeseen complications arise in the probate process, and/or disputes arise among family members (e.g., wills variation claims, challenges to the will’s validity, attempts to alter a will, disputes about which assets are estate assets).

How Does an Estate Lawyer Manage an Estate

Initial Steps Taken by an Estate Lawyer

Initial Steps Taken by an Estate Lawyer

After hiring a probate attorney to assist with administering a person’s estate, they typically take the following initial steps (though of course, the scope of their duties depends on the circumstances and the specific terms you agree upon when retaining the lawyer):

  • Locate the original will and search the Wills Registry for any more recent wills or codicils;
  • Review the will and provide an opinion on the will’s validity
  • Advise on whether probate is necessary;
  • Gather names and contact information for beneficiaries;
  • Assist the executor with gathering necessary documents pertaining to the deceased person and their estate, including an inventory of the deceased’s liabilities and assets (including their fair market value as at the date of death);
  • Conduct a search of the Personal Property Registry to locate security interests or liens against the deceased person’s personal property;
  • Conduct a title search in the Land Title Office to determine particulars of ownership of real property, existence of registered mortgages/charges, etc.;
  • If probate is necessary to deal with the estate assets, deliver formal notice to all beneficiaries named in the will of the executor’s intention to apply for an estate grant;
  • Prepare the appropriate forms and affidavits to initiate the probate process, and file the application to obtain an estate grant with the probate court; and
  • Appear in the Supreme Court of British Columbia for a hearing associated with the probate matter if needed.

Once the estate grant has been issued by the probate court, the probate attorney can assist by preparing the documents needed to transfer the deceased’s property to the executor’s name, so the executor can then sell the property or transfer the property to the deceased’s heirs.

Additional Steps The Estate Lawyer Can Take

The executor has the authority to decide whether they want to perform duties themselves or delegate some or all of the estate administration tasks to a probate attorney. For example, a probate attorney can assist by:

  • Advertising for creditors and evaluating debt claims;
  • Inventorying the deceased’s assets and obtaining appraisals if needed;
  • Helping deal with issues arising from income taxes;
  • Ensuring appropriate estate taxes are paid;
  • Referring the executor to other professionals as needed (e.g., accountant, tax specialist);
  • Communicating with beneficiaries; and
  • Assisting with record keeping.

The probate attorney can also complete legal work such as distributing estate assets to beneficiaries, preparing documents and releases to be signed by beneficiaries when they receive their inheritance from the estate, and assisting with the preparation of the executor’s accounts for the beneficiaries. If passing of accounts is necessary, the probate lawyer can prepare the forms and affidavits, file them in the probate court, and attend in Chambers at the hearing before the Registrar.

Legal Proceedings and Challenges

Legal Proceedings and Challenges

An estate lawyer plays an essential role when complications or disputes arise in the probate process. If the will is contested or a disappointed beneficiary brings a wills variation claim, the executor should hire an estate lawyer to help them navigate the legal proceedings. The executor, as personal representative of the estate, is named as a party in the lawsuit but must remain neutral and not take sides. The estate litigation lawyer will ensure that proper procedures are followed and guide the executor through the litigation.

Estate lawyers also play an important role in spearheading and managing litigation on behalf of disappointed beneficiaries, closely related family members, or individuals with a financial interest in the estate. Legal proceedings may be needed to recover estate property, enforce a right, or challenge an executor. Only certain people have legal standing to challenge the validity of a will, the distribution of estate assets, or the conduct of executors. An estate litigation lawyer draws on their knowledge of BC estate laws, court rules, technical grounds, and applicable limitation periods to provide clear, effective strategies for resolving estate disputes or problems in the probate process.

Setting Up Trusts and Estates to Avoid Probate

Setting Up Trusts and Estates to Avoid Probate

Above, we discussed the role that estate planning lawyers play in laying the groundwork for smooth transitions both before and after a person’s death. Trusts offer a lot of advantages in that regard; foremost is that property held in a trust does not form part of your estate and probate is not needed for assets held in trust.

A trust is a legal relationship. The person who creates the trust is called the “settlor.” The settlor transfers ownership of assets/property to a “trustee” to control on behalf of one or more “beneficiaries.” The trustee holds legal title to the trust property and must manage it in accordance with both the terms of the trust agreement and the legal duties imposed on a trustee.

Types of Trusts to Set Up

There are many options when it comes to trusts. You can transfer assets or property into a trust during your lifetime (also known as a “living trust” or “inter vivos” trust), or you can establish a trust in your Last Will and Testament to take effect when you die (called a “testamentary trust”).

You can set up a trust for your minor children or grandchildren, create a trust to benefit a disabled loved one and protect their eligibility for government benefits (called a disability trust), you can create a family trust to benefit multiple family members, or you can establish an alter ego trust or joint partner trust to benefit yourself, your spouse, and eventually, other named beneficiaries.

Determining which type of trust is right for you and your family members should be done with the assistance of an experienced estate lawyer.

Steps to Set Up a Trust the Right Way

A trust is set up by preparing a written trust agreement or trust deed. An estate planning lawyer and a tax lawyer, accountant, or other financial advisor should be involved in preparing the trust document, as there are several important decisions to be made at this stage.

The trust document must clearly set out the names of the settlor and trustee(s), as well as the trust’s beneficiaries. It must also set out the scope of the trustee(s)’s powers and contain detailed instructions outlining how the family trust assets are to be transferred into the trust and managed by the trustee(s).

Many people hesitate when it comes to trusts, finding the concept and the various types of trusts confusing and overwhelming. The concept of trusts can be demystified with the right professional advice from legal counsel.

Consequences of Not Having an Estate Plan

Consequences of Not Having an Estate Plan

There are many negative legal and financial implications of not having an estate plan. If you die without a will, your assets will be distributed according to BC intestate succession rules. That may result in an unfavorable distribution of your property, with unintended beneficiaries receiving shares that you wouldn’t have chosen yourself.

Lack of an estate plan also tends to increase the risk of legal disputes and family conflicts after your death. Your family members will be faced with uncertainty and forced to incur additional costs to resolve issues. They will have less opportunity to avoid probate fees and tax liabilities. They will also face delay in receiving anything from your estate while legal issues and inheritance rights are being hashed out.

Contact an Estate Lawyer at Onyx Law

When it comes to estate law, we are empathetic, creative, and focus on the results you want. We can assist you in getting an organized, effective estate plan in place to benefit you and your loved ones. We welcome you to consult with one of our estate lawyers to discuss your estate planning needs.

If you are an executor, administrator, trustee, or beneficiary facing estate issues after a death, we’re here to help you navigate the complex web of laws and facts that make up estate law. You do not have to navigate the process alone. Contact our family and estate lawyers in New Westminster today to schedule your free consultation with one of our probate and estate litigation lawyers.

Have questions about a topic?

Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at 
(604) 900-2538


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