Wednesday, April 27, 2016

Prince's Heirs: Star's sister says Prince died without a will

Pop star Prince passed away recently at the age of 57 years old. Now his sister has filed papers saying that Prince didn't have a will, but left a fortune of 300 million dollars. Apparently he did not leave a spouse or children. This is usually the point at which far-flung relatives of all sorts begin to emerge from the woodwork, though I haven't heard of them yet.

To read an article with more detail about this, click here.

Whenever someone dies without a will but has assets, even though the assets may not be $300 million, the courts will appoint someone to administer those assets. This can only happen if someone - a family member, a potential beneficiary, or even a creditor - comes forward and offers to do the job, as the court won't go looking for a candidate.

The question of who gets the assets depends on the law of where the deceased lived. In Canada, the laws governing intestacy (i.e. dying without a will) are provincial rather than federal.

It's really not that unusual for a person at age 57 not to have a will. Most people think of a will as something they'll do when they get older. However, as the story of Prince illustrates, we don't always get the chance to do the things we put off.

The attached photo of Prince is from

Tuesday, April 26, 2016

What do we do with our art collection?

I've recently come across a good article by Malcolm Burrows, who specializes in philanthropy and helping people set up plans for donations both in their lifetimes and after death. Malcolm (with whom I have had the very great pleasure to work a few times) answers the question he hears from people across the country, namely "What do we do with our art collection after we're gone?"

I suppose you could just leave it to your children, but that is generally not a workable idea for a valuable asset. It's probably not what you want for a group of items you spent years lovingly selecting and gathering. Nor is it what the children want you to do.

Click here to read Malcolm's article, which is packed full of great information and ideas. Anyone wondering how to deal with a lifetime valuable collection will find this article thought-provoking and helpful.

Tuesday, April 19, 2016

Summary of the government's bill on medical assistance in dying

Have you been following the news about the future law in Canada that will allow physician-assisted dying? Have you perhaps been wondering what the government is going to propose for the new law? I'm keeping an eye on it so that I can determine whether my clients will be able to give instructions for assisted dying in their Advance Health Care Directives (no determination on that as yet).

I recently came across an excellent analysis of the bill that's currently being proposed by the government, and I recommend it to anyone who wants to know the details of who will be able to access physician-assisted dying, and what circumstances must exist to make it available. The article is simply a summary of the facts, with some helpful commentary, of the terms of the proposed bill. It's not an editorial and it won't try to persuade you to either support or oppose the idea of physician-assisted dying.

Click here to read a summary of the proposal made by Canada's justice minister on April 16, 2016 (Bill C-14). The summary was prepared by the law firm of McInnes Cooper.

Friday, April 15, 2016

Are lawyers to blame for drafting wills with bad choices of executor?

When a lawyer drafts a will that contains a really foolish choice of executor, is that the fault of the lawyer? A reader recently wrote me a note suggesting that to be the case. While I agree that some lawyers could certainly do a lot more to help clients make better choices, I know from personal experience how hard it can be to convince a client that one of their kids is not the best candidate for the job. Read on to see the note, and my comments. And please feel free to add your own thoughts at the end of the post.

"Lynne, you and others advise people to be careful and responsible in their choice of who to appoint as Executor. But what about the lawyer drafting the will? Why is this person not professionally obligated to ask difficult questions in the course of creating a powerful legal instrument that could break apart and financially ruin an entire family? There seems to be an element of 'hit and run' the way legal experts are allowed to prepare these documents without using care or even common sense in doing the job. For example, it is astonishing to me that there is no requirement that a lawyer ask if the person to be named Executor is in chronic debt, has criminal convictions, or - even more important perhaps - is on speaking terms with the rest of the family. But lawyers are allowed to create these trustee time bombs in people's estate plans and remain safe from consequences because the damage done is not realized usually until decades later. And then grieving families are left to deal with the damage. I think there should be some requirement that a lawyer must investigate the risks he or she is creating while drafting a will and facilitating the appointment of trustees.Otherwise, what is the justification for charging a lawyer's fee for the service?"

I can't speak for all lawyers of course, but I can tell you that when I have conversations with my clients, we talk about their choice of executor and why the clients think the named person would be a good choice. If I don't agree, I say so, believe me. I make suggestions to get my clients thinking and talking about their choices.

When I do my seminar on the top 10 estate planning mistakes, one of the top 10 is making a bad choice of executor, because I agree with you that some really poor choices are being made.

As for the obligation on the lawyer, we are bound by a code of ethics that is enforced by the provincial law societies. One of our obligations is that we do not take on work that we don't know how to do well. Unfortunately, lawyers who don't do many wills think that they are a lot better at will drafting than they really are, because they have a fill-in-the-blanks mentality. There is a surprisingly large amount of risk for lawyers who draft wills, and some do get disciplined by the law society, or sued by beneficiaries when they have done a bad job.

One obstacle that is thrown up by clients is that MANY people won't tell the lawyer things about their choice of executor that they perceive to be negative, such as debt, addictions, criminal record, etc. Why won't they? Because the person they've chosen as executor is one of their kids.

Parents don't want to say anything bad about their kids to outsiders, or in many cases even believe that the kids are as bad as people say. They excuse the child's behaviour out of loyalty. I can ask a dozen questions about the son being named as executor but if all the client will say is that he's just the nicest guy ever, how am I to know the difference? In most cases I haven't met their kids. I have no way of  knowing the truth. Parents are remarkably, stubbornly, tenaciously unrealistic about their own kids, and in the context of estate planning, this willful blindness comes back to bite them.

And as for common sense, that is by far the scarcest commodity on the planet. Clients insist that kids who haven't spoken to each other in years will "learn to get along" even though I know they won't.

Clients can sometimes be cost-conscious when they should be value-conscious. I have many times recommended that a client whose children squabble non-stop should use a trust company as an executor. Some assume it's too expensive without even being willing to  hear the price. They think it'll be cheaper if the kids do it, even though it won't be cheaper if the estate ends up in a fight. I can't force anyone to accept my recommendations.

Anyone who hires a lawyer should try if at all possible to find someone who specializes in the relevant area of law. Yes, it makes a difference in the quality of the will and the quality of the advice. It makes a HUGE difference. I know some lawyers who say "most people appoint their kids, is that what you want to do?" and that is the full extent of the discussion. Clients tell me this all the time when they describing why they no longer use their former wills lawyer. Some lawyers simply send out a questionnaire to be filled in and don't actually hold a discussion. I agree that's not nearly good enough.

It's not always easy for consumers to know which lawyers specialize, partly because  lawyers have traditionally been very restricted in the content of their advertising. For example, we are not allowed to say to the public that we are experts in an area of law. This has supported the false impression that all lawyers do all kinds of work, and makes it tough for clients to find the right lawyer.

I realize that in smaller towns, there are no lawyers who specialize in wills. In my view, it's worth driving to the nearest large centre to have this important document done, but not everyone agrees with me. People often tell me things such as their will is being done by the lawyer who lives next door to them, who usually does criminal law or securities law, but they talked the neighbour into doing a will as a favour. How on earth is that a favour if you're getting a document done by someone who hasn't drafted one since he graduated from law school? Talk about lack of common sense, on both sides!

There is no quick fix to this situation. It's going to take more responsibility by both the lawyers and the clients to ensure that good choices are being made, and that those choices are being properly documented for the day when the will is called into service.

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