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Tuesday, September 28, 2010

Update to "Can my spouse be my executor?"

I  had some really good feedback on a previous post from Megan Connolly, a lawyer at Connelly Law in Ontario. Megan pointed out that it's always important to consider the fact that a spouse is someone who can bring a claim for a larger share of the estate if he or she is not left the entire estate under the Will. Though Megan is dealing with Ontario law, we have similar provisions in Alberta under the Dependents Relief Act.

I agree that this is something that should be talked about between the lawyer and the client who is thinking of appointing his or her spouse. It doesn't make the estate run any more smoothly when the person who is contesting the Will provisions is the executor of that same Will. It does happen, of course, but it's preventable.

Megan adds: "As an estate planner in Ontario one thing I do when a spouse is being appointed as an executor is discuss with the client including a provision which stipulates that if the surviving spouse brings a claim against the estate, s/he is deemed to have resigned as executor."

I haven't used a clause like that, but it's certainly food for thought. I believe that it would serve a client's interests by ensuring that the spouse wasn't both attacking and defending the estate at the same time.

Thanks for your input!

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