Learning When Laws Change
Nothing stays the same and that is as true in law as in life. As the world changes, laws have to change to keep up with the times. And in Alberta this has recently meant some serious changes to the way wills and estates are handled. In February (2012) the Wills and Succession Act, SA 2010, c W-12.2 came into force, replacing a number of other pieces of legislation.
A number of my lawyer clients were affected by this change; the ones who do estate litigation, the ones who do estate planning and even the ones who work in matrimonial law. As a paralegal who helps prepare probate documents I needed to get up to date on the way the changes will affect the forms we use and the things we need to do differently when working with clients. To achieve my goal of getting up to date I recently attended a Legal Education Society of Alberta seminar designed specifically for legal support staff. The seminar was incredibly helpful and I came home with a whole binder of information and sample forms, so I feel really ready to work with my lawyers on future files. I didn’t just come home with paper notes though. The seminar chairperson is a Twitter enthusiast and at the beginning of the day he mentioned that all seminar attendees should feel free to use Twitter with the hashtag #lesaonline to interact with one another and to create another mode of discussion. Of course I jumped right into that! I was essentially the only legal assistant to join the twitter conversation, but I’m hopeful that maybe the inclusion of the hashtag conversation on an official basis will encourage others to see the professional value of social media and Twitter.
Below I am sharing the hashtagged tweets from the seminar (since I know they won’t always be searchable on Twitter!) Hope you find the discussion helpful and interesting 🙂 Oh and note that it is probably easiest to read from the bottom up, as the oldest tweets are last.
#lesaonline to learn about division of matrimonial property be sure to read the SCC Tataryn decision.
Analogy 4 two plus personal reps: compensation available is 1 bowl of dog food, reps have to share the bowl #lesaonline
See case of Middelstadt Estate, 2002 ABQB 656 re PR having to repay estate for use of funds to personal benefit #lesaonline
#lesaonline if you are providing an accounting to the OPT, you should include ALL supporting documents
#lesaonline beneficiaries are entitled to ask for supporting documentation (ie receipts, invoices)
Beneficiaries are entitled to backup documentation #lesaonline
Informal accounting is the more common court process#lesaonline
#lesaonline do not need to serve bennies who have signed a release b/c they haven’t indicated any issues with the accounting
#lesaonline goes to court if 1. not all bennies sign releases 2. if PR needs to cancel a bond 3. interested person applies for accounting
#lesaonline interim accounting is a good idea given the fact that many estates do not proceed very quickly
Case worth a read re: personal rep and lawyer compensation: Anderson Estate 2012 ABQB 517 #lesaonline
#lesaonline lawyers need retainer agreements with their PRs setting out fees for core and non-core services
#lesaonline PR should be prepared to support their claim for compensation. Don’t assume everyone knows how hard you worked!
#lesaonline PR compensation is reportable as income. CRA can give the estate a business number to issue a T4.
Compensation is a touchy issues for beneficiaries #lesaonline
Create an excel with formulas to help determine personal rep’s compensation #lesaonline
#lesaonline PRs: no pretaking compensation without consent of all beneficiaries or Court Order
Personal representatives should track time spent to show what compensation may be reasonable #lesaonline
#lesaonline PRs should track their time for working on the estate and record the tasks performed. A ledger matching task to time is helpful.
#lesaonline PR entitled to be reimbursed for reasonable expenses; should record details and keep receipts for expenses
#lesaonline no set format for the accounting but should contain things that give picture of what happened in the estate since date of death
No set forms for financial statements #lesaonline
#lesaonline creditor can demand an accounting; OPT can demand an accounting
#lesaonline accounting goes to residual bennies, persons interested in estate, and specific bennies with respect to their specific gift
#lesaonline accounting required every 2 years or when required by the court
Estate accounting session-it’s interactive! #lesaonline
#lesaonline estate accounting: record of transactions during administration; proposal about who gets what; proposal about PR compensation
#lesaonline Monica Johnson presenting on Estate Accounting
#lesaonline also need Court certified translations of everything from the foreign jurisdiction if necessary
#lesaonline also need Court certified copy of the foreign grant.
#lesaonline for ancillary grant need an NC32 and NC33, and need a will. Residency is an issue, leading to bonding issues.
#lesaonline ancillary grant is NOT a reseal b/c the foreign jurisdiction is not traceable back to the British Empire
#lesaonline caeterorum bonorum – not a swear.
#lesaonline grant for property not included in another grant: need NC1 and NC2.
#lesaonline grant limited to specific property requires NC1 and NC2
#lesaonline grant limited to specific property: needed if someone needs to do something right away and may not be entitled to a grant
#lesaonline resealed grant is not a new grant, just gives effect to foreign grant. Value for property should be date of death valuation.
#lesaonline foreign grant is proof of death, signing formalities in jurisdiction followed, and that there is a will
#lesaonline be up front about any issues with formalities, especially if you have real property that will be subject to the resealed grant
#lesaonline deponent in resealing application can swear that “formalities met in foreign jurisdiction because lawyer told me so.”
#lesaonline were the will formalities complied with in the foreign jurisdiction? A must.
#lesaonline for resealing use an NC32 and NC33
#lesaonline if from outside Canada, UK, colony or commonwealth, can’t reseal but require ancillary grant
#lesaonline resealed grants – a foreign grant confers no authority on the executor in Alberta.
Limitation to challenge a will is not caught by Limitations Act#lesaonline
#lesaonline should surrender all court certified copies or at least account for them in the application.
#lesaonline explain why asking for the grant under “special circumstances”. Paint a very clear picture. Issue all appropriate notices.
#lesaonline must file an NC1 and NC2, only include unadministered property in inventory. Must surrender the original grant.
Sometimes the lawyer might benefit from including legal assistant or paralegal in client meeting #lesaonline
#lesaonline “when you’re in the bizarre, more heads are better than one” – SJK
#lesaonline doctrine of chain of executorships: if deceased was an executor, deceased’s executor can be executor of original estate
#lesaonline rules of preference (Rule 11) speaks to priority of who can apply
#lesaonline someone needs a grant to deal with what’s left in the estate
#lesaonline grant of admin for unadministered property: need all named PR’s dead and property remaining to be distributed
#lesaonline 10(b) grants look clear but are very intricate, some aren’t that uncommon, but difficult
#lesaonline you need to really think about what kind of grant you’re going to need, not just short term needs, but long term needs
#lesaonline 10(d) grants are for limited purposes
#lesaonline 10(c) grants are limited for a time
#lesaonline double grant: for example, if co-executor not in first grant and needs to be added later
#lesaonline a supplemental grant is when you have an executor who took out probate but no longer able/willing, replacement gets supp grant
#lesaonline Rule 10 includes Latin in case you have to look back in time
#lesaonline Administrator has NO authority until application is granted
#lesaonline are you dealing with an executor or an administrator? Distinction: executor appointed, grant approves appt.
Be clear if you are dealing with executor or proposed administrator#lesaonline
#lesaonline Limited Grants – bizarre situations
#lesaonline Sherrilynn Kelly (Parlee McLaws LLP) now speaking on uncommon grants
Now we’ll learn about uncommon grants courtesy of Sherrilynn Kelly#lesaonline
Great information in that part if the session – thanks Marianne!#lesaonline
#lesaonline Edmonton is getting around 200 applications a month. Edmonton and Calgary both working on applications submitted on Sept 7.
#lesaonline in NC7, indicate where property is if relevant.
For estates, step-children essentially don’t count if not specifically named in will #lesaonline
#lesaonline can include the MD in the NC7 if necessary – the more info, the better
On NC 3 if a child predeceased the deceased, say “Yes” then list those children right there #lesaonline
#lesaonline serve minor AND the guardian with the NC24
#lesaonline NC24 notice required – old act/new act.
#lesaonline you may want to submit a family tree, even by way of letter, with your application
#lesaonline if surviving spouse or AIP is the parent of the child, the OPT has no obligation to act for child in for family maintenance app
NC3 grandchildren section is just for cases where grandparent acted as parent of child #lesaonline
#lesaonline in NC3 grandchildren section meant to address when deceased was in loco parentis to grandkids
#lesaonline must list all of the deceased’s children, living or dead, beneficiary or not
#lesaonline proof of death not required for predeceasing spouses
#lesaonline forms are still evolving. Clerks are working on consistencies. You CAN insist that your application go straight to a judge
#lesaonline identify how many certified copies you want at the time of filing – can do in the NC1
Also on NC1 should say how many certified copies of grant are required #lesaonline
#lesaonline NC1: don’t have the only thing on page 2 the justice’s signature – please put something there so document can be identified
On NC1 should NOT be just Justine’s signature #lesaonline
Helpful websites http://alberta courts.ca andhttp://justice.alberta.ca/programs_services/wills/Pages/default.aspx#lesaonline
#lesaonline law firm names/lawyer’s names in footers ok but logos on documents being filed or signed by judges not ok
#lesaonline regarding Court seals, they will still be required for grants being used by foreign courts. If you need it, ask for it.
#lesaonline any questions about WSA send an email to firstname.lastname@example.org
#lesaonline must also look at WSA when you have an intestacy, but all of this explained on AB Justice website
#lesaonline there will be changes to the forms. They are going to be “positive” – we’ll see.
#lesaonline due execution is a problem – clearly identify who is to sign where ie so you don’t have someone witness their own signature
#lesaonline requirement for dispense with bond consents will be removed from the checklist and changed to “might be required by the Court”
#lesaonline may only require bonds if minor beneficiaries or if the estate is large so the court can ensure beneficiaries are protected
#lesaonline for bond requirements see Rules 28 and 29 – are affidavits to dispense and/or consents required?
#lesaonline changes have been made to Surrogate Checklist – use the new one when it comes out. “Bond requirements” have changed.
#lesaonline supplementary affidavits/letters acceptable in some circumstances regarding unusual matters or clarifications required by court
if you can’t comply with a rule then explain why in the NC2. This is your ability to address the court. #lesaonline
#lesaonline can address all unusual matters in part 6 of the NC2 (ie irregular but acceptable markings on Will for NC8)
#lesaonline put markings in a place that won’t destroy any text in the will itself
#lesaonline concerns with markings in the NC8. Put markings on front or back of will. If on back, take care that ink doesn’t bleed thru
#lesaonline be specific and clear in your NC7
#lesaonline use the exact wording of the gift from the will in the forms. Diamond ring should not be described as jewelry
#lesaonline clerks use Google Maps to see if you’ve filed in the proper judicial centre. You can do this before you submit to be sure.
#lesaonline judicial centre is determined by nearest road so be specific with your property descriptions.
#lesaonline if there are specific bequests, be specific in your NC6
#lesaonline Edmonton Surrogate will accept and advise of any concerns; Calgary Surrogate will reject and expect you to redo
#lesaonline be clear as this is a desk application – repetition is not a bad thing (apparently)
Realize you need to address any questions the judge might have#lesaonline
#lesaonline lots of potentially unnecessary info to be crossed out, NOT deleted – need to know your circumstances and be consistent
#lesaonline simple insertion of the date is not unusual and need not be listed in the NC4 and is addressed in the NC8
NC 4 is place to address markings on the will-very important!#lesaonline
#lesaonline NC4 is often submitted incorrectly – anything and everything in the will (ie markings/additions/alterations) must be addressed
#lesaonline list all children and relationships – it’s in the form, need to deal with it.
#lesaonline repetitive info (ie in NC3 and NC6) required in both places.
#lesaonline crossing out seems more burdensome than simply deleting the unnecessary parts – form is MANDATORY as is
Don’t delete from the form, use strike through for anything that doesn’t apply #lesaonline
#lesaonline forms causing grief include the NC3 because it does not give you the option to delete, just cross out or don’t insert data
#lesaonline the Surrogate Checklist can be used to review your application to ensure it’s complete before submitting it
#lesaonline difference b/w jurisdictions as to what can be deleted from the forms
#lesaonline chairing the Wills and Estates for Legal Support Staff seminar – first, chief Surrogate Clerk Marianne Rivard
First up today: Marianne Rivard on forms #lesaonline