What is a Mutual Will?

The starting point for any discussion on wills is that a person may always revoke his or her Will. This may even happen unintentionally, as each time you marry, law dictates that your Will is revoked.

A mutual Will is a binding agreement that parties will dispose of property by a Will in a certain manner, and that they will not change their Wills.

What is a Mutual Wills Agreement?

A Mutual Wills Agreement is a written agreement between two spouses to execute Wills and to not change or revoke their Will without notice to the other spouse. This is a contract at law, and there must be evidence of this. Once made and one of the parties dies, the agreement become irrevocable.

Often the spouses prepare mirror Wills and at the same time sign a mutual wills agreement containing the appropriate language.

Why would we want mutual wills?

These Wills are often considered when one spouse (or both) has concerns or fears that they may die leaving assets to their spouse, and the surviving spouse may subsequently remarry. The newly married spouse may then leave their assets to their new partner, or their new partner’s children, leaving the testator’s children or intended beneficiaries inadequately provided for. A mutual wills agreement can provide peace of mind that this situation has been avoided, as the courts will give effect to the agreement.

Can I revoke the agreement?

Either party to the agreement may revoke the agreement during their lifetime, with due notice to the other party. However, once the first spouse dies, and the second spouse receives the benefits of the first spouses’ Will, then the agreement becomes irrevocable. The agreement will also become irrevocable when one of the living spouses is unable to alter their Will due to incapacity.

What happens if the surviving spouse does change their Will?

A mutual wills agreement operates to create a trust in favour of the beneficiaries named in the Will. The trust becomes “locked-in” when the first of the spouses dies. If the surviving spouse later changes their Will and does not adhere to the terms of the mutual Will, the beneficiaries then have an action for a declaration of a constructive trust.

What this permits the Court to say is that the second spouse broke an agreement, and in fairness they cannot change the agreed upon distribution of the assets.

Alternative to Mutual Wills

Another method that may accomplish this goal would be to create a qualifying spousal trust.

Where do I find out more information on mutual Wills?

As usual, the law on mutual Wills, their creation, operation, and enforcement, is more complicated than can be addressed in a short period of time. Often people think that their estate is not large and does not require attention, or that their Will is a simple matter. This is a big mistake, especially if you wish to provide for several beneficiaries. Estate litigation, litigation over your assets after you have passed on, is very destructive to your family who remain, as well as extremely costly. It can be avoided with a well thought-out estate plan. It is important to realize, there are always good estate planning options.

Please see an estate planning lawyer, and ask the questions you have on your mind.

If you would like to know more about Estate Planning, including a Mutual Wills Agreement, please do not hesitate to contact Steve Andrea at Heritage Law.

You are not alone if you panic when you have to bring on a chambers application for short leave notice under Rule 3(3.1) of the Rules of Court.

A short leave application sounds simple but it is not. It is an application made either without notice to the opposing party or when the parties have not reduced the usual time limits set out in Rule 51A (11 days if under Rule 18A or 8 days otherwise). The applicant has the onus to apply to the Court and explain why the usual time limits are not appropriate and why the nature of the application is urgent.

There are many reasons for urgency, such as an adjournment of a trial, production of various records, an independent medical examination that is scheduled on short notice, restraining orders or injunctions. One counsel may need to get the time limits reduced in order to bring on a cross application that has already been set down.

The materials to be prepared for a short leave application are:

 The Notice of Motion for the original relief you are seeking;
 An Affidavit in support of the original relief;
 An Affidavit in support of the short leave application (if not included in the first Affidavit); and
 Short Leave Requisition requiring that leave be granted to reduce the time requirements.

Once these materials are prepared, counsel must take the documents to the Court registry for filing. Short leave applications are generally placed on the chambers list on the same day as they are filed in the court registry.

It is a good practice to notify opposing counsel of your intention to seek short leave and provide the materials to them before attending in Court. Also, try to obtain opposing counsel’s available dates for the hearing of the main application and their position with respect to any of the proposed new time limits set out on the Short Leave Requisition.

If you seek short leave without notice to opposing counsel, the Court will want to know what attempts you have made to contact the Respondent(s) and why no notice was given. These items should be set out in your Affidavit supporting the short leave application.

The Judge/Master or Registrar will make a decision on the facts whether urgency allows an application to be heard in chambers on short notice. If the short leave application is granted, the Court will then fix a date and time for the main application to be heard. The Court will also complete and sign the Order by Endorsement on the Short Leave Requisition. The Order sets out conditions and new time limits for delivery of the Notice of Motion, Affidavit(s), Response(s), reply Affidavits, Outlines and when the Chambers Record should be filed.

When short leave has been granted, the time limits set out in Rules 10, 44 and 51A do not apply. In addition, Rule 3(3.1)(iv) also states that the Court can “give such other directions as may be appropriate”.

Finally, you must prepare additional materials including:

• A Notice of Hearing;
• The original Short Leave Requisition; and
• the usual contents in the Chambers Record.

Once all the filed documents come back to the office, it is a priority to ensure that all the chambers materials, including the Order by Endorsement, are delivered according to the new time limits. Make sure that you retain proof of service of the documents upon all parties.

A good idea is to place the service confirmation documents in a separate tab at the back of the counsel’s chambers binder for their easy reference. When counsel attends for the hearing of the main application, they will need to advise the Court that all delivery conditions set out in the Order of Endorsement have been met.

Once you have completed one short leave application by following the above steps, any future urgent applications should proceed without any surprises.

A desk order divorce may be obtained where the only issue between spouses is the divorce itself or where the spouses have already settled all of the other issues, such as child custody and access, spousal support and division of family property, whether through a separation agreement or an agreement reached as to the terms of a court order. To obtain a desk order divorce, court proceedings are initiated but appearing in court before a judge is not usually required.

The following outlines the usual process to obtain a desk order divorce:

(a) Drafting of a Writ of Summons and Statement of Claim, which is filed with the court, together with an original certificate of marriage – we will ask you to review and approve this document before it is filed, but it can be signed by us on your behalf;

(b) Arranging service of the filed Writ of Summons and Statement of Claim on your spouse – please ensure that you provide us with a photograph of your spouse to give to the process server;

(c) Waiting for expiration of the time given to your spouse to file a response (an ‘Appearance’ and a Statement of Defence) – your spouse has 21 days to respond. If your spouse does not intend to defend or contest your claim for a divorce, he/she need not take any step whatsoever;

(d) Drafting of the final documents required to obtain your desk order divorce, including the divorce order and affidavit(s) – again, we will send you the final documents that you must sign for your review and approval. You will then be required to meet with us to sign those documents;

(e) Reporting to you – upon receiving the divorce order, we will send you a copy. You are also required by the Supreme Court Rules to mail a copy of the order to your spouse, which we will do on your behalf.

Your divorce will take effect on the 31st day from the date of the court order. Once the 31-day period has passed, we will request a Certificate of Divorce from the court and send that to you. At that point, our services will be at an end.

Fees:

Our fees will be fixed at $1,600.00 if there are no children and $1,800.00 if there are children, which includes all legal fees, out of pocket expenses, including court filing fees, postage, photocopies, G.S.T and P.S.T.

Our fee of $1,600.00/$1,800.00 does not include our out of pocket expense for service of the documents on your spouse, which generally costs in the range of $50.00 to $150.00.

The information and documents we require to commence the process on your behalf are:

• Your full legal name as on your marriage certificate;
• Your spouse’s full legal name as on your marriage certificate;
• Your address, date of birth and how long you have been resident in British Columbia for;
• Your spouse’s address, date of birth and how long she has been resident (or not) in British Columbia ;
• Your date of marriage and place of marriage (pleasure ensure that our office receives your original marriage certificate – this has to be filed with the court documents. If you do not have an original marriage certificate, then we can order one for you from the appropriate Vital Statistics office);
• When did you commence cohabitation (living together) with your spouse (month and year);
• When did you and your spouse cease to cohabitate together (exact date would be great);
• Please provide full legal names of any children involved including dates of birth and whom they are residing with;
• Please provide the same information if there are any step-children involved;
• Has there been any agreements made regarding support or division of property;
• Spouse’s surname prior to marriage AND at birth;
• Your surname prior to marriage AND at birth;
• Marital status of you and your spouse prior to your marriage i.e. never previously married, divorced etc.

Considering what will happen to your property and affairs when you die may be an uncomfortable topic. Or perhaps you are thinking that there are laws in place that will take care of these things, so you don’t have to worry about it. Or you just can’t find the time to get around to dealing with making a Will or considering your other estate planning options.

There are significant benefits to everyone in having a Will. Most importantly, if you do not have a Will, your estate will be distributed not how you may have wished, but as provided for under the Estate Administration Act (British Columbia).* In addition, if you do not have a Will, or have not considered other estate planning options, you may be missing out on significant opportunities to save on the income taxes or probate fees that your estate may have to pay when you die.

There are several common circumstances where it is very important to have a Will or other estate planning documents in place:

Minor Children – If you have minor children, you should have a Will that appoints a guardian (and an alternate) to look after your children until they reach adulthood, in the event both parents die. If you do not have a Will, the Ministry of Children and Family Development of B.C. will decide who is best suited to look after your children. In addition, you should set up trusts in your Will for your children, so that your estate assets can be managed by someone financially responsible on behalf of your children. If you do not have a Will, or do not appoint a trustee of your minor children’s inheritance, the Public Guardian and Trustee of B.C. will be appointed to manage this money on behalf of your children until they reach age 19 (even if only one parent dies, the Public Guardian and Trustee will be required to manage a portion of your estate assets on behalf of your minor children).

Blended Families – If you have children from a first relationship and have entered into a second marriage or common law relationship, you will need to consider carefully your estate planning options. You have an obligation under the Wills Variation Act (British Columbia) to make adequate provision for the proper maintenance and support of both your spouse and children upon your death (spouse includes common law spouse). Unfortunately, this often creates conflict between your new spouse and the step-children as both are entitled to a share of your assets. There are several estate planning tools, such as trusts included in your Will, that can proactively deal with this situation, to avoid conflict in your family in the future.

Disabled Child – If you have a child with a disability, you will want to make arrangements for your disabled child in a Will, including appointing a guardian and a trustee of any assets to be inherited. The use of trusts in the Will in this situation is particularly helpful to ensure there are sufficient funds to support the child, and they can be structured in such a way that the disabled person does not lose their entitlement to government benefits, which may otherwise be the result if they inherit assets directly from you when you die.

Marriage – If you have a Will, but have since been married or are engaged to be married, you should immediately do a new Will. Marriage invalidates your Will (unless it was prepared in contemplation of marriage).

Separation – If you have just separated from your spouse, you should immediately do a new Will if you do not want him or her to inherit your assets. Until you have separated with the intention of living apart for at least one year or have obtained a divorce, your spouse will still be entitled to inherit a portion of your estate (if you have no Will) or will inherit whatever portion of your estate you gifted to him or her under your Will.

* The Estate Administration Act provides that if you die without a Will, if you have a surviving spouse or surviving children (but not both), your estate assets will be transferred solely to your spouse or children. If you have a spouse and children, your spouse receives the first $65,000, the household furnishings and a life interest in the family home, and the remainder is split either 50/50 between the spouse and child (if only one child) or 1/3 to the spouse and 2/3 to the children (if two or more children). If your children are minors, the Public Guardian and Trustee will assume responsibility for managing approximately 1/2 to 2/3 of your assets (other than the family home) on behalf of your children and your spouse will not have control over these funds. If you have no spouse or children, your estate will be transferred to your parents, your siblings or your next closest family members.

Recently, I have had many calls and emails from other lawyers asking how we set up our IT systems.  It’s true that our current hardware, software, VOIP phones and web site enable us to practice very efficiently and also remotely.

What is also true is that it was expensive and time consuming to set up.  The costs of the hardware, software, consulting fees and time spent building our IT infrastructure were significant.  The fact that I am also married to a highly technical electrical engineer whose hobby it is to keep our systems running is also something people should know.  This is not an endeavour every solo or small firm lawyer should necessarily jump in and do.

If I was just starting out, I would seriously consider using a web-based SaaS application like Clio.  Clio can be accessed from Macs, PCs and iPhones.  It provides matter management, time tracking, billing, contact and document management, task scheduling and trust accounting. Clio is priced by monthly subscription. Pricing is US$49/month for lawyers and $25/month per support staff member. This cost includes all technical support, maintenance and upgrades.

Yes, it won’t be as customizable as our system is.  That said, the set up time is minimal and the price is pretty amazing.  In contrast, costs to build our systems approach 6 figures.  Particularly in this economic environment, I think it’s worth a serious look.

When people discuss virtual law firms, they are generally referring to two distinct concepts:

1. a law firm where there is centralized branding, administration and management, but individual lawyers work from satellite offices, often from client work sites or home; or
2. a law firm that exists online through a secure portal.

Virtual Firms: Centralized Administration and Contract Lawyers

In response to the global recession and a traditional business model under attack, many innovative law firms are emerging that employ lawyers who work largely at home, thereby saving on overhead and costing clients less in legal fees.

The traditional math used by large law firms is one-third of the revenue goes to salaries, one-third goes to overhead and one-third goes to profits. High associate salaries and the cost of prestigious offices have put pressure on billing rates, which often reach as high as $800 an hour.  Clients are increasingly looking for rate and fee reductions, and many expect that mindset will continue into the economic recovery and beyond.

To reduce costs, law firms are cutting or freezing compensation, cancelling summer programs and laying off associates.  Litigation departments are outsourcing document review and production, work that was formerly assigned to junior associates.  In transactional practices, large numbers of associates have been let go as it is increasingly uneconomic to retain unproductive staff for when the economy rebounds.

In addition to the business pressures on law firm management, large numbers of lawyers are choosing to leave the traditional law firm model.  A February 2007 cover story of California Lawyer magazine entitled, “We’re Outta Here: Why Women are Leaving Big Firms”  noted the serious issue of high attrition rates from the legal profession:

“The past few years have witnessed the highest levels of associate attrition ever documented, with an average annual attrition rate for both sexes of 19 percent, as recently reported by the NALP Foundation for Law Career Research and Education. Within five years of entering a firm, more than three-quarters of associates leave. Female associates were nearly twice as likely as males to depart to pursue a better work/life balance.”

Firms like Virtual Law Partners, Axiom Global Inc. and Keystone Law, have seized on a business opportunity.  For example, Virtual Law Partners is a virtual law firm consisting of experienced lawyers, most who have left big firms. According to its website, “We work primarily with in-house legal departments of large and mid-sized companies to provide general corporate, licensing, contract, IP protection, securities regulation, financing, real estate, employment, merger and acquisition and other legal services.”

The firm currently has over 40 lawyers, all of which are “partners” and work from home.  Some of the benefits for clients include lower billing rates and more experienced lawyers.  Client work is performed by senior lawyers and work typically assigned to junior associates is given to highly trained paralegals. The firm highlights that they don’t have an “up or out” promotional system, which enables lawyers to stay with the law firm, and their clients by extension, for a longer time.

The VLP website further notes that “our state-of-the-art technology platform allows us to operate virtually, eliminating expensive office space and minimizing personnel as well as other overhead expenses. We pass along the savings to our clients. VLP attorneys, with education and experience comparable or superior to attorneys at other top tier firms, practice law at more prudent rates. ”

Our firm Heritage Law is an example of a virtual law firm.  Heritage Law is currently five lawyers and six support staff, practices in the areas of wills and estates, family law and mediation and has offices in West Vancouver and Vancouver, BC.

Heritage Law is paperless and utilizes practice management software to centrally manage billing, time tracking, matter information, contacts, appointments, documents and document assembly.  All staff log into one remote, secure server over the Internet which is a repository for all firm data and software applications.  We have a VOIP phone system which allows eleven staff in different locations to use the same phone line and system.  We have a remote answering service which answers client calls during the business day if a staff member is out of the office and routes the message to the appropriate person to deal with.  All staff have a computer, high speed Internet, a VOIP phone and a scanner at their home offices.   The firm retains traditional offices for meeting with clients.

Other than the principal of the firm Nicole Garton-Jones, all lawyers and staff are on contract.  The lawyers earn a percentage of billed time and flat fees.  Paralegals are paid hourly by the firm and there are some administrative staff on salary. The firm is at full capacity, and the lawyers and staff determine the amount of their earnings by how much they choose to work.

In terms of schedule, each of the staff set general guidelines of the days and hours they are available to work so the firm can plan around accepting and allocating new client files.  The overriding concept is that everyone is a professional whose goal it is to provide excellent client service.  Provided that client work is completed in a timely and efficient manner and sufficient notice is given of absences and time off, lawyers and staff are welcome to structure their individual schedules as they see fit.  Lawyers bear final responsibility for client files and supervise staff to ensure that clients are served well.

The autonomy and flexibility of the work environment suits our staff, who have a self directed and pro-active work style.  The flexible work environment has enabled Heritage Law to have access to and hire highly skilled staff, to the benefit of both the firm and clients alike.

Virtual Firms: Practicing Law Over the Internet

The impact of the recession has not just been difficult for big law.  Many smaller firms and solos have felt enormous pressure as spending on consumer legal services has shrunk significantly.  In an effort to reduce costs, enhance flexibility and offer reduced fees, many smaller firms and solos have chosen to open web-based practices.

In this context, a virtual law office, also termed e-lawyering or online lawyering, is generally defined as a professional law practice that exists online through a secure portal and is accessible to the client and the lawyer anywhere the parties may access the internet.  These firms provide lawyers and clients with the ability to securely discuss matters online, download and upload documents for review and handle other business transactions in a secure digital environment.

Companies such as DirectLaw and VLO Tech have sprung up to enable solo practitioners and small law firms to service consumers and compete technologically with larger firms by using web-enabled software and also automated document assembly that can be bundled with legal advice. Clients are charged a fixed fee, rather than billed by the hour, and purchase legal services online using a credit card.

Heritage Law’s firm web site is www.bcheritagelaw.com.  In terms of e-lawyering, clients can currently fill out online questionnaires to open files and pay invoices online.  Heritage Law has signed an agreement with DirectLaw, a company based out of Florida, to assist with the launch of a companion firm site, www.heritagelawonline.com.

Heritage Law Online will be a branch of Heritage Law where simple estate planning legal services will be provided to clients, at least partly via the web and phone.  Pending regulatory approval from The Law Society of BC, clients will be able to potentially interact with the firm entirely online.  The fees will be relatively low and the intended client profile will be the approximately 50% of British Columbians who will die without a will.

For Heritage Law, the combination of a firm culture predicated on balance and flexibility with innovative technological solutions to facilitate it has enabled Heritage Law to access top talent and retain it.  In addition, other benefits of the technology have been our ability to efficiently handle a large volume of client files, provide excellent client service and generate a high quality work product.  Last but not least, the lawyers and staff of Heritage Law are happy to be part of the firm.

There are many interesting and innovative developments in the practice of law today, including virtual law firms.  These technologies and innovations offer benefits to law firm managers, lawyers and clients alike.  For many of us, these opportunities have enabled us to recapture the sense of excitement that made us enter the legal profession in the first place.

Why to Do It

Generally speaking, the benefits are:

• reduced file storage costs;
• the efficiency of having all firm information reside in once central digital repository.  Also, a firm is better positioned to take advantage of new technologies such as document automation if client information is already stored digitally;
• better risk management as client conflict checks are more comprehensive and automatic;
• the ability to work remotely, enhancing work life balance (which can be a human resources advantage);
• often enhanced client service through increased speed of delivery of legal services; and
• being paperless is green as thousands of documents are never printed out.

Issues to Be Aware Of

A firm has to be aware of potential issues of being paperless, including:

• the importance to regular and secure data back-up;
• security concerns; and
• potential staff resistance.

How to Do It

At the outset, a firm needs to be dedicated to the paperless goal and implement a well organized plan. It is important to get buy in from all staff, put firm policies in place and ensure adequate time and resources are allotted to planning, implementation and training.

Second, a firm must ensure its hardware is up to the demands of the increased amount of scanning, processing and storage.  Network servers need the ability to store up to 5 GB per lawyer per year. Having a reliable backup system and testing it often is critical.  A firm should consider installing scanners at every desk and have a central printer/scanner for larger scanning projects.

Third, a firm needs to put the required software in place. Adobe Acrobat is the standard for document exchange and is a good means for converting paper documents to legal files.  A document management software program needs to be selected, which serves as an electronic filing cabinet.  Finally, a firm may want to consider legal practice management software as well.  Practice management software allows a law firm to centrally organize client information digitally, including accounting, contact and case data.  Practice management programs often have document management capabilities built in, or you can link a third party document management program such as Worldox.  Two popular examples of practice management programs are Amicus Attorney and Time Matters.

Example in Practice

Heritage Law is an example of a  “paperless” law firm and utilizes practice management software to centrally manage billing, time tracking, matter information, contacts, appointments, documents and document assembly.  All staff log into one remote, secure server over the internet which is a repository for all firm data and software applications.  We have a VOIP phone system which allows ten staff in ten different locations to use the same phone line and system.  We have a remote answering service which answers client calls during the business day if a staff member is out of the office and routes the message to the appropriate person to deal with.  All staff have a computer, high speed internet, a VOIP phone and a scanner at their home offices.

With respect to software, we use PCLawPro for billing and time keeping.

We use Time Matters Enterprise for matter management and tracking contacts and appointments.  Time Matters has been customized for Heritage Law as follows.  There are tabs for matters in the categories of: Corporate, Litigation, Estate Admin, Estate Planning, Family Law, Mediation and by responsible lawyer so every open matter in the firm is categorized and viewable from one central location.  Each matter has an electronic client intake sheet so the user can see information including the date the file was opened, the responsible lawyer, the referral source, bring forward dates, relevant limitation dates, conflict check info, retainer letter info, any special billing info and a current status field where a short update is typed as the file progresses.

We use Worldox for document management.  No paper is kept except for original client documents.  Every document is saved or scanned into the system and saved according to client and matter.  Every document saved in Worldox is searchable by client, matter, description and text.

We use HotDocs 2008 Professional Edition for document assembly.  All our standard firm documents (memo, fax cover sheet, retainer letters, non-engagement letters, reporting letters and demand letters) are automated.  We are currently working on a project to automate our estate planning practice (wills, powers of attorney and representation agreements).  Document automation, in addition to the other programs, enables staff to generate client documents in an efficient and high quality manner.

PCLaw, Time Matters, Worldox and HotDocs are all linked together to work as a cohesive whole.

Each member of the firm shares a Microsoft Windows desktop running on a shared server in the Heritage Law IT infrastructure, and every desktop offers all of the core productivity applications previously described. Because all of the desktops reside on the same server, rather than on individually configured and field deployed desktop PCs, all that is required for a staff member to access and begin work for Heritage each day is a Windows PC and an internet connection. The Windows PC does not have to have any special applications installed on it, and might be a home PC, a borrowed PC, a laptop on the road or any other PC to which the staff member has access throughout their work day.

Each staff member has a Polycom SoundPoint IP 560 desk phone with HD Voice technology. Each phone has an ordinary 3 digit extension registered through Iristel, a Canadian internet telephony service provider. The power of the phone system is derived from the fact that the phones can be connected to any ordinary internet connection in any of the staff member’s home offices, and yet all remain reachable through simple 3 digit extensions. Calls to other phones in North America are toll free, and calls within the firm have HD voice quality. There is an automated attendant to greet callers and provides a directory for them to reach the appropriate staff member’s extension.

As the staff all wish to have flexible schedules, we employ a call answering service based in Abbotsford, BC called Re: Messaging Solutions Inc.  If a staff member does not pick up a client call directed to their local on our phone system, the call is then automatically forwarded to the answering service.  The answering service can then call the staff member directly on their cell phone, email the message to them or forward the message to another staff member, depending on the circumstances.  This allows us to be able to maintain a high level of client service while staff are out of the office during regular business hours.

Clients can fill out questionnaire forms online which are emailed to the firm prior to a file being opened.  The goal in the future is to populate this information into an answer file in our document automation program for enhanced efficiency.

Heritage Law is currently working on www.heritagelawonline.com, where clients will be able to potentially interact with the firm entirely online.

More than 20 years have passed since graduating from my paralegal program in Ontario.   After deciding to relocate to British Columbia four years later, I found myself starting at the ground up, feeling disillusioned that none of the lawyers I had interviewed with seemed to grasp what I had to offer.  But I was young, optimistic and glad to be working.   It has been a long haul finding an environment in which I am given the trust and latitude to do what I do best.   Yet I continue to be surprised that so many lawyers fail to recognize the benefits that can be gained by effectively leveraging the skills of talented paralegals and other legal support professionals.    Considering our current economic climate and cost-sensitive consumers, delegating effectively is key to achieving a competitive advantage.

In contrast to other provinces, Ontario, for example, certain tasks and functions that sensibly should be delegated to paralegals are currently prohibited in British Columbia.    This issue has been explored by the British Columbia Law Society’s Paralegal Task Force.  In 2003, the Benchers asked the Task Force to consider whether the Professional Conduct Handbook should be revised to permit an expanded role for non-lawyer employees and to frame the appropriate qualifications of those employees.   An interim report was made in 2005.  The final report to the Benchers of April 2006 (which can found on Law Society website) formulated a definition of a paralegal as “a non-lawyer employee who is competent to carry out legal work that, in the paralegal’s absence, would need to be done by the lawyer.   A lawyer must be satisfied that the paralegal is competent by determining that one or more of the paralegal’s training, work experience, and education is sufficient for the paralegal to carry out the work delegated.”   While Chapter 12 of the existing Professional Conduct Handbook does include certain principles of delegation to legal assistants (i.e., paralegals), the Task Force concludes that additional functions can properly be delegated to paralegals in the interests of the profession and the public.   If the recommendations of the Paralegal Task Force were implemented (which would require revision of the Professional Conduct Handbook), a paralegal could perform advocacy work on a client’s behalf, for example, or appear in the Small Claims Division.

Yet lawyers need not wait to get more out the human resources available to them now.    Clients will benefit from receiving cost-effective, high quality legal services.   Employees will benefit from the expectation and challenge of greater responsibility.    The ‘how’ can be gleaned from a number of publications that offer guidance, including Arthur Greene’s  Leveraging with Legal Assistants: How to Maximize Team Performance, Improve Quality, and Boost Your Bottom Line, one of several excellent ABA resources on this topic.

• Determine who will act as executor or administrator of estate;
• Maintain a record of all decisions made, steps taken and financial transactions;
• Contact funeral service provider to make funeral arrangements;
• Consider publishing an obituary (Vancouver Sun and Province, tel: 604-605-2254);
• Locate estate assets and safety deposit box, if applicable;
• Secure estate assets and ensure adequate insurance coverage is in place;
• Notify post office to redirect mail, if applicable;
• Obtain a death certificate and conduct wills search by contacting BC Vital Statistics Agency, tel: 604-660-2937;
• Review will, if applicable;
• Obtain probate or letters of administration from court, if required;
• Call Service Canada to notify of the death and to obtain information regarding Canada Pension Plan, Old Age Security and related benefits, tel: 1-800-277-9914;
• If the deceased received pension benefits, extended health and dental benefits from a pension plan, contact the pension plan administrator to advise of the death and to determine eligibility for continued benefit coverage for dependents;
• Contact Passport Canada to cancel deceased’s passport, tel: 1-800-567-6868;
• Contact Social Insurance Registration to cancel deceased’s Social Insurance Number, tel: 1-800-206-7218;
• Notify Canada Revenue Agency of the death and cancel benefit payments in the name of the deceased, tel: 1-800-959-8281;
• If the deceased was receiving veteran’s benefits, call Veterans Affairs Canada, tel: 1-866-522-2122;
• If the deceased was receiving the Seniors supplement or disability benefits for seniors, call the BC Seniors Line, tel: 1-800-465-4911;
• Cancel deceased’s Driver’s License at local ICBC Driver Licensing Office, tel: 604-661-2800;
• Contact local ICBC Autoplan broker, or private insurer if applicable, to cancel or change car insurance;
• Contact life insurance company to obtain benefits, if applicable;
• Contact financial institutions to remove deceased’s name from joint accounts or to transfer accounts held solely by the deceased into the name of the Estate;
• Contact credit card companies to remove deceased’s name from accounts or to cancel accounts;
• Notify phone and utility companies to change the name on bills or change the service;
• Contact Land Title Office regarding removing deceased’s name from title to property, tel: 604-660-2595;
• Contact BC Gazette (and local newspaper) to arrange for publication of notice to creditors, tel: 1-800-663-6105;
• Examine claims against estate and defend any legal action against estate of deceased;
• Contact an accountant to file tax returns and apply for clearance certificate;
• Pay debts;
• Prepare detailed accounting of assets as well as receipts and disbursements during administration of the estate;
• Obtain approval of financial statement from beneficiaries or court;
• Distribute personal and household effects;
• Pay legacies and make partial distribution to beneficiaries according to terms of the will or Estate Administration Act of BC, as applicable (ensure have signed release from each beneficiary first);
• Obtain clearance certificate from Canada Revenue Agency;
• Complete final distribution; and
• Contact a lawyer regarding general estate questions and procedures for probate or letters of administration, if required.

What to do When Someone Has Died: A Checklist

Where both spouses (or common partners) are potentially exposed to creditors (i.e. where they are professionals or partners in a business), it may be appropriate for them to transfer the principal residence to an inter vivos discretionary trust. An inter vivos trust is one that is created during your lifetime. A discretionary trust is a trust where the beneficiaries’ entitlements to the trust fund are not fixed, but are determined by the trustees of the trust.

Creditor Protection, Centralized Management and Multiple Beneficiaries

The trust can be structured to govern who is entitled to benefit from the property, how it is managed and what to do if the trustees can’t agree.

The trustees of the trust are one or more individuals who have the power to make certain decisions, and the beneficiaries can include not only the trustees, but also children, grandchildren or other relatives. An advantage to a discretionary trust is that none of the beneficiaries have any vested right to the property – they will only be entitled to use the property as the trustees allow and/or when the trustees decide to distribute the property to them. If a beneficiary experiences creditor issues, they will have a strong argument that they have no interest in the property, and that it therefore should not be subject to seizure.

Probate Fee Avoidance

The property in the trust will not be subject to probate fees, currently approximately 1.4% of the gross value of the estate (and subject to being increased by the acting Provincial government of the day).

Retention of Primary Residence Capital Gains Exemption

The Income Tax Act allows a home owned by a “personal trust” to qualify as a principal residence if the property was ordinarily inhabited in the calendar year ending in the relevant fiscal year of the trust by an individual beneficiary of the trust or a child, spouse or former spouse of such a beneficiary.

Note: Property Transfer Tax Issue

For a primary residence, a transfer of legal ownership from you to the Trust in the Land Title Office will not incur any capital gains taxes but it will trigger property transfer taxes under the BC Property Transfer Tax Act (1% of the first 200,000 and 2% of the balance).

There is a way to work around this issue where legal title to the property will continue to be held by you as bare trustee on behalf of yourself as trustee of the Trust for the benefit of the beneficiaries of the Trust. The mechanisms to effect this transfer are an Agency Agreement, a Bare Trust Agreement, a Transfer of Beneficial Interest and a duly executed Form A Transfer. Legal title to your property in the name of the Trust will not be registered unless there was a potential creditor concern or you passed away and the property transfer taxes will be payable at that time by the trust. It is important to note that while this strategy will avoid the payment of property transfer taxes at this time, there is a risk that a creditor could register a judgment against the property against you as bare trustee in the interim. That said, there is a large amount of unregistered trust property in existence and you may be prepared to accept this risk.