My brother-in-law, Kevin, passed away unexpectedly at the relatively young age of 59. He never married and did not have any children, and much to our dismay, we discovered after he died that he did not have a will. Thus, my husband and I began a lengthy and complicated journey looking after the affairs of a family member who passes away without a will.
While most people would agree that having an up-to-date will is a good thing, it is surprising how many of us never get around to doing this. While it requires some work, likely some costs, and it means facing one’s own mortality, the benefits for the family that you leave behind cannot be emphasized enough.
When a person passes away without a will, they die “intestate,” and the relevant legislation in each province governs what will be done. In BC, this legislation is the Wills, Estates and Succession Act (WESA). In our case, we had been to a lawyer who specializes in wills and estate planning to discuss our own wills the week before Kevin passed away. We were fortunate to have met this competent lawyer when we did, and we ended up putting our own estate planning on hold for several months while she provided expert guidance to us about the myriad of tasks involved in looking after someone’s estate.
The first thing that needed to be done was making the final arrangements and deciding about cremation or burial, funeral or memorial service, etc. When people do not make any of these arrangements or let their wishes be known before they pass away, it leaves the family guessing about what the person would have liked. So, in addition to the upset of a loved one passing away suddenly, the family is faced with the additional stress of making decisions that may or may not be what the deceased would have wanted.
Assuming there is a family member who is willing to take on the task of becoming an administrator of the estate, then an application for a Grant of Administration must be completed and submitted to the Supreme Court of BC Registry. (If a family member is not willing to do this, then the estate will be administered by the Public Guardian and Trustee.) A key component of the Grant of Administration is a detailed balance sheet of the deceased’s financial affairs, listing all of their assets and liabilities. The difficulty of doing this depends on how organized the person was and how easy it is to find all the necessary records, as well as on the complexity of their financial affairs.
Once the paperwork has been submitted, there can be a waiting period of several months before the Grant of Administration is approved. Technically speaking, the administrator does not have any legal authority to act until this approval has been received; however, we found that there were several things that could be done in the interim period with the agreement of other family members. This included such tasks as applying for life insurance and other death benefits, as well as cleaning out the home and personal effects and preparing the home to be listed for sale.
When it came to dealing with banks and other companies while we were waiting for the Grant of Administration to be approved, we discovered there was a large diversity of responses to our requests. We were very fortunate that a few key people understood that we were acting in good faith and went out of their way to help us administer the estate, while others would not even talk to us until we had the final approval.
Once the Grant of Administration has been approved, then the remainder of the estate can be settled; i.e. properties and other assets can be sold, and the estate can be distributed. In BC, the rules of intestate succession are stipulated in WESA, and the distributions depend on whether there is a surviving spouse, any children or grandchildren, and other relatives. Most people have definite ideas about how they would like their assets distributed after they are gone, but when they pass away without a will, the distribution is governed by WESA and may not be what they would have wanted. If there are no surviving relatives as stipulated in WESA’s rules of intestate succession, then the total value of the estate goes to the government, a final disposition that few people would be happy about!
The administration of an estate can take up two years or more, depending on the complexity. Our lawyer recommended that we keep detailed records of all the hours that we spent looking after the estate, and it did not take long for the hours to start adding up. There is a provision in WESA for the administrator to charge the estate a fee up to a certain percentage of the value of the estate if they choose to do so, and keeping track of one’s hours is very helpful, if one decides to do this.
While it was a relief when the final clearance was received from the Canada Revenue Agency, the legal bills were paid, and the remaining funds distributed among family members, there still were lingering thoughts that this whole process would have been so much easier if Kevin had gotten his affairs in order and made a will before he passed away. A friend that has had a lot of experience dealing with these types of situations told us that he thought anyone who passes away without a will should be reincarnated and must look after someone else’s affairs in their next life, so they could truly appreciate what a complicated mess they left behind.
While I wouldn’t wish this on anyone, I certainly understand now that having an up-to-date will is the only way you can be sure your wishes will be looked after and that your estate will be distributed in the way you would like after you are gone.
For additional information, see: http://www.nidus.ca
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