Will Wednesday: Who pays when the estate gets sued?

Q. Who pays when the estate gets sued?

A. Traditionally, it was acceptable to use the beneficiaries’ money from the estate to defend and pay for legal actions brought against the estate during administration.

Courts today are re-examining the traditional access to estate money in respect to lawsuits; they may impose restrictions or prohibit the executor from using estate money to fund the cost of litigation against the estate.

If the executor is determined to be negligent and causes the estate to shrink, he or she may be required to make restitution out of his/her personal assets to the beneficiaries, creditors or other parties that suffered a financial loss.

Will Wednesday: Do I as executor have a financial obligation if I make a mistake?

A. People don’t typically think about the role of executor as having a personal financial risk but nothing could be further from the truth.

It’s important that people understand they are effectively pledging their own personal assets against a significant loss of estate value that is attributed to their negligence in administering the estate as the executor.
If you are asking someone to act as executor on your behalf, it’s equally important to understand the imposition.

Notaries are drafting clauses into wills to afford executors insurance protection against such risks and to provide peace of mind to all parties of the estate.

Will Wednesday: Who is the executor responsible to?

Q. Who is the executor responsible to?

A. The executor is personally liable for his or her actions to the following groups or individuals:
– Beneficiaries and creditors for investment losses and breaches of trust; and
– Other parties, with whom the deceased may have had dealings, for contractual obligations and wrongs in law (tort law).

Will Wednesday: What is the executor’s legal duty?

Q. What is the executor’s legal duty?

A. The executor has a fiduciary duty to the parties to the estate. A fiduciary duty is a much higher standard of care and performance than is typically required in a non-fiduciary role, because it involves the management and distribution of money belonging to other parties. The required standard of care is often much higher than a person might generally exercise in respect of their own personal business.

Pet Photos with Santa

We love our furry, four-pawed, and feathered creatures and our favourite Santa has generously donated his time to our Christmas paws cause.  We believe in direct giving and have found a family through the military family resource centre who has fallen upon some challenging times. Often these are the people who work hard, keep putting one foot in front of the other, but don’t (or don’t know how to) reach out for help.  We’ve made a point of finding them.  I have first hand seen the difficulties many military families face and they have added challenges that most in the general population never see.  We simply want to give them a stress free Christmas.

On behalf of myself and my staff, I will personally top up all donations with $500.00

Beverly Carter

The pictures will be posted on our Facebook page for you to download. Please like our Facebook page so you don’t miss them.

Travel Letters for Minors in Victoria BC

Do you need a notarized travel letter authorizing your child to cross over into the USA or other foreign destinations? The answer is YES.  Recently I spoke with Officer Spack, a border guard, who confirmed that children are often denied access into the USA without proper documentation.   From personal experience, last year, we needed to provide a notarized letter to the USA border guard for a 16 year old friend of my son.  We had the letter in hand which made our crossing easy and we continued our March Break journey into Washington State.  However, I’ve been challenged (several times) crossing the border travelling with just my own son.  My son’s father is deceased, and obviously there isn’t another parent to be able to sign.  But the grillings I got by officials in the days before I knew how to deal with the boarder crossings, were far more stressful than I thought it should be.  However, with experience comes wisdom and through several of these border experiences, I learned what documentation to take for travel.

Once the school year ends, our kids will be leaving the island in droves with parents, grandparents, aunts, uncles, and others in quest of fun foreign destinations. As a Notary Public this means I see a dramatic increase in appointments for last minute notarized travel letters and authorizations.  Probably the most common destination I see travel letters required for is Disneyland.  To make your travel smooth it’s important that the documentation you provide meets with border approval.

There are different styles of travel letters ranging from simple one liner authorizations to the most common Canadian Government recommended child travel authorization form. I recommend the government form, as it allows the best child and parent information in a transparent way.  One caution with the Government form is that it is designed for legal size paper.  Most of us don’t use that size anymore, so we have a scaled down letter size loaded on our site for your ease. CLICK HERE: TRAVEL CONSENT LETTER

Useful travel authorization tips here for you:

  • Start with a good travel form
  • Fill in detail & be specific
  • Get the letter notarized at least 1-2 weeks before departure
  • Allow additional time if both parents need to sign – it can be a challenge to get 2 parents together during a weekday for signing note: as a matter of convenience I often sign parents at different times as it can be a challenge to get to the same place together during work hours
  • Provide the adult traveling with your child a copy of the child’s long form birth certificate. This long form shows both parents names.
    • Many parents have different names and the birth certificate will answer the question about whether or not the child belongs to the authorizing parent
  • Where there is a court order regarding custody or a grant of legal guardianship over the child, then travel with copies (not originals) of these documents as back up in the event you are questioned about your role or legal authority to travel with the child.
  • Check your airlines website for additional or specific requirements at international destinations.
  • Check official country websites for detail on specific documentation or Visa’s required.
  • Save a copy of the letter or use a refillable form (& save the PDF) so you don’t have to repeat all the details for future travel letters.

Happy Travels from Beverly Carter

The Business of Being a Notary

In addition to earning a Master’s Degree in Applied Legal Studies and gaining comprehensive legal knowledge on the elements of the notary profession we all set up and run a business. The business we run is strikingly similar to many other businesses that are owned and operated in our communities. A notary business needs to have customers buy the service and we need to deliver the professional services and receive payment. It all sounds so simple, but a legal practice is so much more complex.

I think the common starting ground is a business plan. In particular, I found our Simon Fraser University ALS 630 course, taught by adjunct professor, David Bilinsky, a distinguished lawyer whose self-professed mission in life is “to empower [legal professionals] to anticipate the changes, realize the opportunities, face the challenges and embrace the expanding possibilities of the application of practice management concepts to the practice of law in innovative ways that provide service excellence.” With Dave’s leadership, we created business plans fundamental to professionally serve our clients ethically and responsibly while also meeting the practical needs of running a business. Indeed the decisions that I made, and continue to make, which are based on that business plan endure much longer in some cases than the legal processes that evolve throughout time.

As we plan our notary businesses some of the areas are very well defined by our profession. Our product mix will include: notarizations, real estate transactions, mortgages, personal planning documents (wills, powers of attorney, health representation agreements), and executor-trustee estate appointments. Based on the Notaries Act that governs us, we really don’t have much room to diversify and certainly in the early stages of one’s practice specializing in one particular area is seldom an option. We do have to consider a number of other elements in considerable detail including; Marketing, Financing, Organization, Office Location, Competitor Analysis etc.

I think we have an excellent course in the curriculum on this matter so covering the elements of the business plan I will leave to our mentor and leader, Dave Bilinsky. As a Notary that has recently been through the process let me tell you it took much more of my time and energy to setup the business than I expected. I started out in a package office environment with the intent of limiting the start-up costs and that worked well for a few months, however, I quickly got so busy I needed staff and the package office environment with staff across the hall was not terribly efficient. Retail space became available in the complex that housed the package office and I moved forward to negotiate a lease and take on new space.

I have leased space before so anticipated the lengthy back and forth with the landlord and after a couple of months of discussions signed a lease and started on leasehold improvements so that we could occupy the space. As is all too common in business the leaseholds took two more months than expected and we were graced with visits from carpenters, painter, electricians and computer folk for months following our first occupancy. The physical space other than costing more and taking longer was all pretty standard stuff. And, anyone who has ever renovated or constructed a new home or space will appreciate how everything always takes more money and time!

We live in an age of substantial technology, and our ongoing discussions and debates with Dave and my cohorts regarding the implementation of such into a modern notary practice was only the tip of the iceberg. Even with ample research on the style of technology in my own office, I was surprised by the complexity of the technology requirements and indeed the ongoing costs of such services and equipment. We had to determine how to connect to the internet, the type of internal network, how we would manage electronic files, electronic file backup, software licenses for computers, document scanners, photo copiers, phone systems and the desired level of connection between the phone system and the computer network. We installed an alarm system, and did you know you need a licence to have an alarm system? You also need a business license, notary insurance, business insurance, and a license for my sandwich board sign. The sign on the building didn’t need one that seemed a bit odd to me. And then we had to manage (seamlessly to the public) through the quirks and quarks of our new systems for several months after initial setup. We assessed whether we were to be a paperless office and ended up as a quasi-paperless office with the goal to implement paperless systems as technology improves and rules change for legal practices. Ultimately, the process of tweaking and improving our technological systems and practice needs is an ongoing aspect of running a modern notary practice.

Once I had my lease location nailed down the customers continued to arrive and I provided the mix of notary services. Finances were looking brighter — all was great. However, every step forward revealed new and interesting challenges in the evolution towards business success. Fortunately customers did arrive but my credit card system wasn’t right and had to be changed. It turns out setting up an accounting system was much more complex than I thought. We had to review and update that system. Plus I got sick, my staff got sick, my son was home sick and the landlord wanted the first, second and third rent cheques! Thank goodness I had a sound financial plan and we started to have some decent cash flow.

Just as I thought I had it all in hand I noticed we were really busy with files and actually needed to add another employee. Finding the time to hire and train while I was really busy with notary files was a real challenge. Fortunately we had planned the office with additional staff members in mind so the structure was there but making a good hiring decision was very time consuming.

All that said I am now close to three years into the business and the practice is thriving. Happily, I even get paid occasionally. I am grateful for our ALS 630 course for all the elements of the business planning that provided the framework to allow me to move through setting up and operating a Modern Notary Business. This may be the most important course in the program!

 

This article was featured in the Spring 2016 Scrivener magazine.

http://thoughtfullaw.com/about/
ALS-630 2012 Online Guide, Professional Practice, by David J. Bilinsky