Happy second anniversary to me

Columnist marks two years

Photo: Contributed

Paul Hergott marks his second anniversary writing his current Castanet column.

It’s been two years since I dusted off my keyboard after a 3½-year break, with my comeback column on Jan. 28, 2024.

This time around it’s about end-of-life matters, drawn primarily from my legal practice area, commonly known as “wills and estates”.

I've stayed remarkably on topic—only seven columns in 105 have wandered elsewhere. Four were about my previous writing passion, road safety. Two were about me, Christmas columns and one was in support of trans kids.

If there’s an end-of-life legal topic you’re interested in, I’ve probably written about it. Let me know if you’d like a link to a searchable archive. You can also use a free AI platform to help you find columns of interest to you. For example, you could ask Chat, Grok or any other AI platform: “Provide a list, with dates, links and a brief summary, of any columns Paul Hergott has written about disinheriting a child” and you’ll get a reasonably reliable list. Follow up with “Are you sure you got them all” and the list will improve.

Sometimes a topic has given me enough material for a series. The longest was an eight-column series about avoiding probate, within which there was a three-column sub-series about different types of joint-tenancy.

There was a four-column series about disinheriting a child and a three-column series about undue influence, inspired by a court case where an 84-year-old widow left her million-dollar estate to a male escort.

One of my pet topics is what I refer to as the “blended family problem”, which extends beyond blended families to include couples without children and even old-fashioned non-blended families. There was a four-column series, as well as three other columns, written at different times.

I get a kick out of arming folks with legal information and I enjoy providing do-it-yourself guidance, though I try to be careful to always recommend having a proper consultation with a lawyer.

On the do-it-yourself front, I’ve:

1. Given links to free power of attorney and representation agreement forms.

2. Explained how to create a very simple, legal will.

3. Explained ways you can make your own changes to a will.

4. Walked readers through removing a deceased spouse’s name from title to a jointly owned home.

5. Given instructions about handling a modest or insolvent estate.

6. Provided a six-column deep dive (including a five-column series) on obtaining probate without a lawyer.

My favourite topic was debunking widely held beliefs about when a will must be updated, including reasons I’ve seen erroneously given by other lawyers. For example, moving to B.C. from another province rarely requires an updated will.

Before I started writing about this subject area, I made a list of potential topics to ensure I’d have enough to write about. I thought I’d have to regularly deviate to other topics that piqued my interest but, as it turned out, my list of potential topics grew instead of shrunk.

Even though I have lots of material to work with, I love your input. So, send me questions or ideas to [email protected] and I’ll consider them for future columns.

Please understand, I’m not taking on new estate or incapacity planning clients but I am happy to refer folks to excellent lawyers in our community who are. The only work I’m currently taking on is uncontested estate administration (probate) matters.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Cloak and dagger world of 'secret' wills

Dual wills

Photo: Melinda Gimpel, Unsplash

Dual wills is a legal B.C. that was approved by the courts in 2017.

It’s cloak and dagger time.

Last week, while revisiting a series I wrote about avoiding probate, I mentioned another tactic, holding wealth in assets that don’t require probate, like gold bars.

I gave a caution. If you mess up by owning even one asset that requires probate:

1. The legal expense and time delay of the probate process will be required

2. Those gold bars will have to be disclosed in the probate application, with the consequence that probate fees will include a percentage of their value.

I gave a teaser that I might write about the “cloak and dagger” estate planning tactic of having two wills. It’s a tactic commonly referred to as “dual wills”. It’s a perfectly legal but its use in British Columbia has only recently (2017) been endorsed by our courts.

You have one will, the “official” will, for those assets that require probate, i.e. your house, car, bank and investment accounts, boat, etc. and a separate will, the “secret” will, for everything else, i.e. your gold bars, cryptocurrency, jewellery, tools, etc. It is critical you name a different executor for each of your wills.

I’ll explain why. In short, the executor of the probated will only has to swear to the assets they are responsible for. The executor of the official will has to swear a document as part of the probate application process, called an “Affidavit of Assets and Liabilities for Domiciled Estate Grant”.

That affidavit includes this statement (I’ve removed words to make it more understandable): “Attached to this affidavit as exhibit A is a statement of assets…that discloses the … property … that passes to the applicant in the applicant’s capacity as the deceased’s personal representative”.

The property passing to the executor of the official will includes only the property referred to in that will. It does not include the property passing to the different executor of the secret will. Probate fees are assessed based on the property disclosed in that affidavit. No probate fees are assessed on the property covered by the secret will.

Why doesn’t everyone use dual wills to avoid probate fees?

I’ll answer that question with a question: How much property do you own that wouldn’t require probate?

For most people, it’s such things as household furnishings, jewelry, tools, lawn mower, computer, cell phone, hunting rifles, etc. The replacement cost of all that stuff might be significant but probate fees are based on “as is” market value. Add up the used Facebook Marketplace values of all of that and you might, on a really, really good day, reach $50,000. Probate fees on $50,000.00 are only approximately $700.

A million bucks in gold bars, attracting probate fees of approximately $14,000, might warrant the hassle of having two executors and the added legal expense of this estate planning tool.

More commonly, dual wills work well for those with significant wealth in a holding company, professional company, or other closely held private corporation.

Another use for dual wills is where there are assets outside of Canada.

I used the label secret will in part to go with the cloak and dagger theme but also because some people prefer to keep their wealth confidential. Probate files are publicly available for a small fee, so anyone can find out the value of a person’s probated estate. The assets of the secret will, on the other hand, are kept private and confidential.

I’ll end with this caution. This is complicated stuff. Do not attempt to set this kind of thing up by yourself. A lawyer’s involvement is critical.

This caution is not self-serving. I am not taking on new estate planning clients at this time, preferring to focus on the estate administration (probate) side of my practice. E-mail me for a referral to lawyers who do offer this estate planning tool.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

More ways for your beneficiaries to avoid probate fees

Probate fee avoidance

Photo: Pixabay

It doesn’t matter the value of your unregistered assets. Unless an estate grant is required for other assets, there would be no need for probate, says Paul Hergott.

Are you looking for another way to avoid probate fees and expenses? How about gold bars?

I wrote a series of eight columns this past fall about ways to avoid probate. The series was in answer to a challenge by a reader who accused lawyers of being “estate chasers,” and getting rich off probate fights. He challenged me to write about avoiding probate.

I gave a presentation that included that subject recently to members of the Society for Learning in Retirement.

What a cool organization. It has some paid administrative support but it’s otherwise it is volunteer run. Ut hosts presenters (also volunteers) on topics ranging from historical (“The Acadians: From Nova Scotia to Louisiana”) to health (“Understanding Stroke: Prevention and the Role of a Healthy Lifestyle”) to technology: (“AI Literacy for Everyday Life”).

It also offer classes. I saw one on its syllabus for poetry writing, another one for memoir writing and yet another called, “iPad for Novices”.

With a $25 annual membership fee and minimal class or presentation fees, it’s no surprise that most of the upcoming classes and presentations are full.

While fielding audience questions, I realized there was another probate avoidance strategy I did written about—assets that don’t require probate, like gold bars.

A lady with a gleam in her eye shared that she purchased some gold in 1968. A website tells me the price of gold went up from $43.50 USD in 1968 to more than $4,600 USD today. It’s no wonder she had a gleam in her eye.

I’m going to walk you through how gold bars and other unregistered assets impact probate.

First, I need to briefly explain probate. I use the word “probate” to refer to an estate grant, which is a court order that gives an estate representative the authority to handle estate assets. An estate grant is required to transfer or access any estate assets that are registered by a third party, like ICBC, the Land Titles Office, banks, investment companies, etc. I’ll refer to them as “registered assets”.

My column series gave strategies for structuring your affairs to avoid there being any estate assets. I wrote about spending your money and giving it away while alive. I also wrote about using joint tenancy, a trust and investments with beneficiary designations.

Assets held in joint tenancy pass to the surviving owner without the need for an estate grant. It’s the same for assets in a trust and assets that can pass by beneficiary designation like TFSAs, RRIFs and segregated funds.

If all registered assets pass to your intended beneficiaries without the need for an estate grant, then probate is not required. No probate means no probate fees and no legal expense applying for the estate grant.

It doesn’t matter the value of your unregistered assets, like gold bars, cryptocurrency, electric bicycles, expensive furniture and jewellery that you might have. You could have $5 million is gold bars under your $15,000 bed. Unless an estate grant is required for other assets, there would be no need for probate.

But what if you messed up and purchased a $50,000 vehicle that’s registered solely in your name? You failed to register the vehicle jointly with your wife.

Your executor (I assume it’s your wife) will need an estate grant to transfer that vehicle to herself.

Part of the application for an estate grant is a sworn document where your wife has to swear or affirm a list of estate assets and their value. Your gold bars, like the bed and other furniture, jewellery, etc., are all estate assets and must be listed. Even though it’s only the vehicle that requires the estate grant, probate fees will have to be paid on everything.

Please send me your questions. I feel there might be enough material for another column on this subject, in which case, I’ll take the opportunity to share the cloak and dagger estate planning tactic of having two wills, one for registered assets and one for non-registered assets.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Columnist hears from readers after suggesting driving safety tip

Stay alert behind the wheel

Photo: Pixabay

Inattention is one of the leading contributors to vehicle crashes, says Paul Hergott.

My road safety column last week struck a nerve.

Reader response sare typically few and far between. This past week, several readers took the time to share a mix of their experience, insights and criticism. You’re going to have to wait another week for me to return to my typical column themes.

Last week, I had shared my conclusion that inattention is overwhelmingly the culprit in car crashes. What does a wills and estates lawyer know about car crashes? Before transitioning to this area of law, I had spent more than 25 years prosecuting car crash claims.

I also shared a mechanism I came up with for maintaining attention at the wheel, which I called “doing the 10 and 2”. It’s simple. I find that if I make a point of keeping my hands at the 10 and two positions on the steering wheel, the minor discomfort of keeping them there leads to my hands drifting when my mind drifts from the task at hand. Noticing my hands drift snaps my brain back to attention.

An affirmation of the concept of “inattention blindness” came from Nick, a true expert in driver inattention. Nick has 10 years of experience flagging on the highways around Revelstoke. I can’t think of an occupation with more expertise because flaggers intensely and continuously observe driver behaviour.

Nick shared this important insight: “You don't have to be doing anything to be distracted.”.

He shared experience to back it up.

“I once had eye contact with a (fortunately slow moving) driver who had the 'lights on but nobody home' (look) and wasn't reacting at all to my stop paddle. She wasn't phoning or talking to a passenger or eating. She was just driving with no conscious attention whatsoever paid to the road.

“It wasn't unusual for drivers to tell me I ought to have signs out—after they had just driven past at least 4 of them.”

Nick shared his anger about the inherent contradiction of “vehicle safety mechanisms” that, in his words, “save drivers from the hassle of paying attention to what is going on beyond their windshield”. Good point, Nick.

Publication of my column coincided with an extremely close call the day before when a Kelowna driver ran a red light. The passenger in that near-miss referred me to her dash cam video that can be found using “runs red light near crash Kelowna” as a browser search.

It was her impression, supported by the video, that this wasn’t a “running the light” situation. Rather, the offending driver seemed to have failed to notice the red light.

How is it possible to fail to notice a red light? How did the truck driver in the infamous Humboldt Broncos bus crash fail to notice the oversized stop sign with the flashing red light on top of it?

Zena referred me to online videos that help the viewer understand how it’s possible that we can be looking but (because of distraction) not see—or mentally process—what’s directly in front of us.

I invite you to use “selective attention test” as a browser search. My favourite video is by Marissa Webb.

An RCMP officer, who works highway patrol and is also a collision analyst, shared he provides coaching to drivers when conducting enforcement, noting, “I’ve been applying mindfulness grounding exercises to driving and been coaching drivers on ways to re-engage with the driving task.”

He mentioned a couple of mechanisms I suspect are superior to my “doing the 10 and 2”, but noted: “People seem to love simple tricks. I’m going to add your 10 and 2 suggestion into my roadside education routine”.

A fellow named Don offered a number of insights. One was applying the general life lesson of “leave room for error” to driving. That’s defensive driving at its best.

I also received an important criticism.

“Just a quick note re your column today. The old 10 and 2 position has gone the way of the dinosaurs, as it can cause severe injuries to the driver if the airbag deploys,” wrote Jo.

A quick internet search endorses her criticism. It appears that extremely rapid airbag deployment can cause raised hands and forearms to be propelled in ways that put you at risk of broken fingers, wrists and arms. If propelled into your face, you risk facial fractures and concussion.

Hands at 9 and 3, or 8 and 4, are now recommended.

Unfortunately, a road safety mechanism called “doing the 9 and 3” is far less memorable but it serves the same purpose. Even more so. At 9 and 3, none of the weight of your hands and arms is resting on the steering wheel so it takes even more conscious effort to keep them there.

Remember, this isn’t about the safest place to put your hands while driving. It’s about a mechanism to help a driver realize their mind is drifting from the task at hand.

Nick, the flagger, added his hope that maybe, eventually, fully autonomous vehicles will reduce the toll of death and life-altering injury on the roads. With our government harming, rather than helping, road safety with its cell phone laws and failing to go after inattention which is the most significant cause of crashes, I share that hope.

In the meantime, try doing the 9 and 3.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.