FAQ

Cobbett & Cotton Always Recommend to have Proper Legal Assistance. The following are samples of generic and frequently asked questions. As every case is unique, please contact us for more comprehensive assistance.

When Buying or Selling a House

What's the difference joint tenancy and tenancy in common?

If you’re sharing ownership of the property, there are two ways to register. For “joint tenants,” if one owner dies, the property automatically goes to the surviving owners, without becoming part of any estate. Joint tenancy is common between spouses, especially for the house they live in. Meanwhile, if a “tenant in common” dies, his share goes into his estate and is dealt with according to his will, if any.

I'm getting a mortgage to buy a house. Can my lawyer prepare the mortgage documents?

Your lawyer may be in a conflict of interest; however, this is permitted if you and the lender both consent to having the same lawyer prepare the mortgage and the transfer documents. If you and the lender later have a dispute (for example, if you don’t make the mortgage payments), the lawyer cannot act for either of you.

This house I want to buy has a fence that looks like it's partly in the neighbour's yard. Do I need to worry?

If any fences, retaining walls or other structures are on someone else’s land, you’re “encroaching.” You’ll need to get the other property owner’s written permission. Otherwise, they could insist that you demolish whatever’s encroaching.

This house I want to buy has a fence that looks like it's partly in the neighbour's yard. Do I need to worry?

If any fences, retaining walls or other structures are on someone else’s land, you’re “encroaching.” You’ll need to get the other property owner’s written permission. Otherwise, they could insist that you demolish whatever’s encroaching.

Only a professional land surveyor can tell you whether a building, fence, etc., is an encroachment. He’ll take measurements on site, prepare a plan showing the lot’s boundaries, and make a sketch showing the locations of buildings, easements and rights of way. A professional survey for a house in Vancouver normally costs about $300 CDN. It may be well worth it.

ICBC Injury

ICBC made me an offer. What should I do?

Always consult with a lawyer before accepting whatever ICBC offers you. Most personal injury lawyers will give an initial consultation without charge, and can help you determine whether the offer is reasonable, debatable, or completely unreasonable. A general rule is that the earlier a case is settled, the smaller the settlement is likely to be.

Doesn't the ICBC adjuster work for me in settling my case?

The ICBC adjuster is an employee of ICBC, and is looking out for its interests, not yours. ICBC wants to pay you only as much as it needs to… not necessarily what your claim is worth.

The adjuster is saying I'm at fault. What should I do?

Adjusters sometimes believe the wrong driver when stories conflict. Your lawyer can help you gather evidence and interview witnesses to prove your case, and then present it to ICBC during the negotiations. If ICBC still disputes the liability and does not offer a satisfactory settlement, you may have to go to trial to prove your case.

What incentive is there for ICBC to settle before trial?

ICBC knows that if the case goes to court, it needs to pay its lawyers to defend the case. This usually amounts to thousands of dollars per day of trial… whether they win or lose. Also, because ICBC usually offers you less than what they think a court will award you, it is risky for them to actually go to trial. They may have to pay their own lawyers’ fees and a portion of your lawyers’ fees, as well as pay you out more than they would otherwise pay to settle your case. That is why the closer you get to the actual trial date, the higher the settlement offers are.

I don't really want to go to court. If I file a lawsuit, does that mean I have to?

It is estimated that more than 90 per cent of all ICBC cases filed in the B.C. Supreme Court are settled out of court; some lawyers think the figure is much higher than that.

Wills

What happens if I don't have a will?

UNDER CONSTRUCTION

How should I choose an executor?

You should choose someone that you trust implicitly, and who is capable of handling financial matters prudently.

Another consideration is how long the estate administration may last. If your children (or any other beneficiary) won’t receive their full share of the estate for another 10 or 20 years after you pass away, consider whether your executor will still be able to handle your estate then.

If you have minor children, don’t appoint your executor as the guardian. Raising children is costly, so under most wills, these costs are paid from their share of the estate assets. Executors who are also guardians will be in a conflict of interest: they will either pay themselves too much and deprive the children, or pay themselves too little and assume the additional costs. This can be avoided by choosing different people for these two roles. The most common exception, of course, is choosing a spouse to be both.

Many people choose their spouse as the first executor and name an alternative, in case their spouse cannot act. You may choose two or more executors, depending on how complex the estate is, and how much you trust them.

What property is not included under my will?

Proceeds are paid directly to a beneficiary named in your life insurance policy. These proceeds do not form part of your estate. Similarly, if you hold houses, properties, bank accounts or other assets in joint tenancy, they will automatically pass to the other owner(s) who survive you. So, these are not included in your estate either.

By giving away property outside your will, you may save probate application fees, which could be up to 1.4% of the value of your assets.

Disputed Wills and Estates

What happens if I don't have a will?

UNDER CONSTRUCTION