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Estate Litigation

Do You Need a Lawyer to Settle an Estate in 2023?

Settling an estate is a process completed by an estate lawyer or an estate representative called an executor who is legally empowered to perform an important list of duties. Estate lawyers and related legal professionals can help to fairly and efficiently settle a deceased person’s estate. They can provide a range of services to estate executors that include protecting the interests of estate beneficiaries or trustees. Estate executors who may be responsible for assessing an estate’s monetary value or executing a will can rely on help from a lawyer to execute these duties according to the law. Accounting tasks, asset inventories, and resolving legal disputes on behalf of the estate are all potential duties of an estate executor.

Do you need a lawyer to settle an estate in British Columbia?

BC law does not require that an executor hire a lawyer to settle an estate or assist with the probate court process. Lawyers provide assistance with the complexities of estate law and litigation, the execution of a will, or grant of administration application.

Designated executors with the time and ability needed to navigate estate settlement are legally allowed to do so on their own. However, this doesn’t always mean they should. Personal representatives and executors of an estate should seek a lawyer’s advice when settling the estate will exceed their time or expertise.

Several types of lawyers are qualified to assist family members or non-relative personal estate representatives in the settlement of estates and execution of wills and trusts. The type of lawyer you’ll need will depend on the deceased person’s will (or lack thereof) and the assets they owned. These may contribute to an estate’s tax liabilities or any legal issues related to the transfer or adjudication of financial assets and liabilities.

What types of lawyers handle estate settlements?

Estate Lawyer: These professionals assist in the execution of the will or settlement of the estate on behalf of its beneficiaries. They may plan, administer, and litigate estate settlement or navigate probate court on behalf of family members or the personal representative assigned the role of the estate administrator. They may also create an estate plan, including living trusts and wills.

Estate lawyers can advise you in matters of estate taxes, will validation, asset appraisal, property distribution, trust administration, and any accounting needs including the valuation and sale of assets. They may also help beneficiaries file legal documents like a death certificate, pay the estate’s debts and income taxes, and file the estate’s tax returns.

Probate Lawyer: Sometimes referred to as an estate litigation lawyer, probate lawyers help beneficiaries or will executors navigate the probate process to ensure wills are certified by the court. Probates also work to assure that a will is executed according to its author’s wishes. They may also determine whether the executor’s (and possibly, their lawyer’s) plan to execute the will is in accordance with the will and the law.

During the course of these activities, relevant debts are to be paid and assets properly distributed. If no will exists or the will’s author was not of sound mind at its time of writing, probate courts in the jurisdiction where the deceased person resided will step in to oversee the settlement of the estate.

Probate Litigation Lawyer: Sometimes referred to as estate litigation lawyers, probate lawyers represent those who contest a will or trust in probate court. Relevant parties they may advocate on behalf of include the deceased spouse, heirs, executors, assigned administrators, beneficiaries, trustees, and financial institutions. They also assist those seeking to invalidate or contest a will or dispute the appointment of an executor. When no will exists, they can support the lawful distribution of estate assets and property.

What are the responsibilities of an executor?

An estate executor is a personal representative or administrator named in a will or appointed by BC’s probate court. These individuals are legally empowered to carry out instructions of a will, manage the estate settlement process or enter probate court to resolve disputes as a representative of the estate.

Executors have the responsibility to ensure that a deceased person’s estate is well-managed and that the legal and financial obligations associated with a will, trust, or estate are satisfied. If no will exists, a person can lobby probate courts to become the administrator through a grant of administration. Grants are sometimes awarded to family members or other individuals close to the deceased but may also be a third party in instances when a will is contested or there’s no one with clear legal standing to settle the estate. It is common for an assigned executor to rely on a lawyer to settle an estate, as this endeavour typically requires knowledge of the law and familiarity with probate court procedures.

Responsibilities can include:

  • Paperwork associated with filing in probate court.
  • Identifying estate assets and ascertaining their value.
  • Meeting the responsibilities to beneficiaries according to the law and the will.
  • Safeguarding assets.
  • Satisfying obligations to creditors and the payment of taxes. (This could include obtaining a clearance certificate with the Canada Revenue Agency.)
  • Filing tax returns for the deceased and their estate including paying estate income taxes.
  • Selling assets to ensure there’s enough money to pay all financial debts and liabilities.