It’s natural to want to protect your legacy and ensure future financial security for your family members. It’s also natural to want things to go as smoothly as possible when you receive inheritance property or prepare your own estate plan. It’s best to know ahead of time what will happen to our personal property after we die.
There are ways to make for smoother estate transitions from the deceased person to the beneficiary, and there are experts who can help.
Onyx Law Group can help you understand inheritance laws and navigate the legal process for handling estate matters. Our team of estate and family lawyers with over 20 years of combined experience have the extensive expertise you need to get the results you want. Contact us for a consultation to discuss estate and trust litigation matters.
What is Inheritance Law?
Inheritance laws are complex and come from several sources. They also vary considerably by province and by country, so it’s essential to understand the nuances of the laws that apply in your specific jurisdiction. For example, if you live in BC but own real property in Ontario, Florida, or China, you’ll need to know the relevant laws so you can plan accordingly.
In British Columbia, the Wills, Estates and Succession Act, SBC 2009, c. 13 (“WESA”) is the main source, but it is also extremely important to understand relevant common law principles, the Trustee Act, Canadian tax laws (e.g., requirements for filing a final tax return and paying inheritance tax to the Canada Revenue Agency), the BC Supreme Court Civil Rules (which set out the estate administration and probate process) and the Probate Fee Act (which establishes probate tax rates and when probate fees are payable).
What issues do inheritance laws address?
British Columbia inheritance laws govern all aspects relating to a deceased’s estate, including:
· What is required to make a valid Will,
· Who inherits when a deceased died intestate (i.e., a person dies without a Will),
· The court process for contesting Wills that are unfair to a beneficiary or invalid for reasons such as undue influence or lack of testamentary capacity,
· The appointment of an estate executor, executor’s fees, and what to do if problems arise (e.g., an executor fails to fulfill their duties or is withholding money from a beneficiary),
· How to select and appoint a guardian to care for minor children
· How to set up trusts to ensure the needs and best interests of your minor children or disabled family members are looked after,
· Dealing with assets such as RRSPs, insurance proceeds, and trust property that passes outside of the deceased’s estate (e.g., addressing out-of-date beneficiary designations; claims by disappointed beneficiaries who expected to inherit assets that no longer form part of the deceased’s estate).
The laws also address incapacity planning and issues that arise from events that take place during a person’s lifetime, including:
· Setting up trusts to manage and distribute wealth and assets in the most advantageous manner possible,
· Challenging gifts or property transfers made during the deceased’s lifetime (e.g., real property or bank accounts gratuitously transferred to an elderly person’s caretaker instead of their children),
· How to execute a valid Power of Attorney, and what happens if lawyers so appointed act outside of their legal authority,
· Committeeship applications when a person becomes incapable of managing their property and/or health care.
Estate and Trust Planning
When it comes to estate planning, the key issues for consideration are the best ways to protect assets, provide support for family members, and ensure your wishes are followed.
How to set up a Trust?
While many BC residents have a Will, most don’t consider trusts as a valuable estate planning tool. A properly structured trust may be just the thing to achieve your financial and estate planning goals. A trust can be set up during your lifetime (called an “inter vivos trust” or “living trust”), or in your Last Will and Testament to take effect when you die (called a “testamentary trust”).
Trusts can be used for many purposes, such as providing for the financial needs of a disabled family member or minor children, or an alter ego trust/joint partner trust to minimize probate fees, protect assets, and ensure the smooth transfer of assets to your spouse and family members.
When establishing a trust, you should give careful consideration to the choice of trustee(s). A trustee has a lot of responsibilities and often also has a lot of discretion. For a living trust, you can choose one or multiple people to act as trustee (and may want to appoint yourself as trustee to maintain some control over the trust property). When a trust is established in a Will, the executor named in the Will is the trustee unless you appoint a different person. We strongly recommend discussing the trustee’s role with your inheritance lawyer to ensure you are making a wise choice.
How to Handle Your Estate?
The estate administration process is complex and often takes months, if not years, to complete. For that reason, you want to ensure you are choosing the right person (or people) to handle your estate after you die. There are many responsibilities and tasks your executor will need to see to.
There’s a lot to consider here. You can appoint a family member, friend, or professional in your Will. You can select one person and name an alternate in case they aren’t able to handle your estate when you pass away. You can name multiple executors to handle your estate, and specify whether
co-executors can act independently of each other. Talk to one of our estate lawyers for information on an executor’s duties and how to choose the right person to handle your estate.
Estate and Trust Litigation
Disputes often arise after a person’s death. Some disputes can be resolved informally among beneficiaries and executors, especially if they have an experienced estate lawyer advising them on their rights and the law. Mediation and arbitration can be very useful options for resolving estate disputes.
In other situations, parties will need to look to the courts for resolution of estate disputes. Contesting a Will in British Columbia can be a complex and challenging process. There are only a few legal grounds for contesting a Will (e.g., fraud, mistake, lack of capacity, undue influence), and there must be evidence to support the case.
Property transfers made during a person’s lifetime may be challenged after their death (e.g., your children may challenge the gratuitous transfer of your home to joint names with only one of your children, saying that you did not intend for the sole child to take the whole of the property on your death). This kind of litigation can be avoided with proper estate planning and documentation of the purpose of such transfers.
Litigation may also be brought to challenge the fairness of a Will (known as a will variation claim under WESA s. 60), but only the spouse or children of a deceased person have the right to bring this type of estate litigation claim. It’s worth noting here that a person’s estate does not need to be divided equally. In other words, unequal treatment is not on its own enough to convince the court to vary a Will.
The court only has the authority to intervene if a Will does not make adequate, just, and equitable provision for the proper maintenance and support of the will-maker’s spouse or children. When evaluating a claim to vary a will under s. 60 of WESA, the court considers various factors, including the relationship between the will-maker and the claimant, the size of the estate, contributions made by the claimant, the claimant’s financial needs, and any misconduct or poor character of the claimant.
What is the Role of an Inheritance Lawyer?
An inheritance lawyer must be well-versed in inheritance laws so they can advise clients on legal issues, explain and evaluate legal options, and help clients navigate any estate planning or estate litigation matters that arise.
Beyond that, the specific role of an inheritance lawyer depends on the unique needs of their client. An inheritance lawyer can serve clients in so many ways, such as:
- Preparing Wills that avoid common pitfalls,
- Identifying creative ways for beneficiaries to make claims and leading litigation on behalf of beneficiaries (e.g., claims against greedy siblings; competing claims between step-parents and children in blended families; claims to recover stolen inheritance property)
- Giving advice to an executor or administrator on the estate administration process,
- Creating and implementing comprehensive business succession plans,
- Bringing applications to obtain estate representation grants to give the estate executor or administrator legal authority to act on behalf of the deceased’s estate,
- Dealing with unclaimed inheritances,
- Assisting with estate administration after the issuance of the Grant of Probate or Grant of Administration, from communicating with beneficiaries, coordinating the estate representative’s final tax return with an accountant, to distributing the estate’s assets on an interim and final basis.
Our team of lawyers is skilled, compassionate, and always on hand with answers to even your most difficult estate questions. We welcome you to contact us today to discuss legal fees and services.
Choosing the Right Inheritance Lawyer
It’s important to choose the right inheritance lawyer. Hiring the right lawyer can help ease stress, provide clarity, and minimize risks.
What qualities should you look for in an inheritance lawyer?
Professionalism, reputation, transparency, and experience are the key qualities that set excellent inheritance lawyers apart from the rest.
Professionalism.
You should look for an inheritance lawyer who communicates well and who is respectful of your time. You will be discussing sensitive family dynamics and private, personal matters with the lawyer you hire. Do your due diligence by meeting with prospective lawyers for an initial consultation to decide who you trust and who you feel most comfortable with.
Reputation.
Talk to friends and family about who they recommend. Research prospective estate lawyers by reading online reviews and testimonials from past clients. Check out the estate law firm’s website to see if their lawyers are active in the legal community. If it’s an estate litigation matter you need assistance with, have a look to see if the lawyer has represented clients in recent court cases of note (especially valuable if such cases are similar to yours). A lawyer’s solid reputation in the legal field and before the courts will benefit you and give you peace of mind.
Transparency.
Honesty, sincerity, and frankness are important qualities in an inheritance lawyer. Be wary of a lawyer who refuses to discuss fees, the likelihood of success, or the potential risks. You want to choose a lawyer who is upfront with you about your situation, the legal process, and legal fees.
Experience.
British Columbia inheritance laws are highly nuanced, and the probate process is complicated. Now is not the time for a lawyer with a general practice or who dabbles in drafting Wills. When you want to get your estate plan in place or you need solutions to resolve an estate dispute, you need a specialist with extensive experience. An inheritance lawyer is uniquely positioned to provide you with legal advice derived from their specialized knowledge and years of experience.
In fact, you should be aware that there is a specialization within the inheritance law field:
- If you are in a blended family or you are a spouse in a second marriage, you want a lawyer who can advise you on the ways family law and estate law intersect (our estate and family lawyers are well-suited to advise you on both issues).
- If you are seeking to contest a Will, vary a Will, or challenge a gift or property transfer, you want a lawyer with expertise in handling estate litigation.
- If you are looking to get a clear, effective estate plan in place, you need the services of a skilled estate planning lawyer.
- If you are an estate executor or administrator, you want an experienced probate lawyer to guide you through the estate administration process from start to finish.
The team of estate and trust lawyers at Onyx Law Group have extensive experience in each of those areas within the field of inheritance law. Whatever your needs, we will find the best way to help you.
The Legal Process of Claiming Inheritance and Your Rights
Heirs and beneficiaries have legal rights and there are legal processes that can be used if those rights are not respected. For example, if your loved one died without a Will, you may have the right to receive an inheritance in accordance with the rules of intestacy set out in Part 3 of the Wills, Estates and Succession Act. You may also have the right to apply to be appointed as the personal representative to handle estate administration. The legal process of applying for an estate grant starts with the filing of Form P1 – Notice of Proposed Application in Relation to Estate with the BC Supreme Court, and then serving it on every person who may be entitled to inherit from the estate. An experienced inheritance lawyer can guide you through the paperwork and court process to obtain an estate grant and ensure you receive your proper share of the estate.
If your spouse or parent did leave a Will, but you feel that it fails to provide you with a fair inheritance, you have the right to bring a wills variation claim. The legal process is commenced by filing a Notice of Civil Claim in the BC Supreme Court claiming that the Will failed to make adequate provision for the surviving spouse or child(ren) of the deceased person. The Notice of Civil Claim must be filed within 180 days of the issuance of an estate grant. An inheritance lawyer can advise you on the strength of your wills variation claim and guide you through the legal process.
BC beneficiaries and heirs have numerous other rights, including the right to be given notice, the right to be kept informed, the right to the passing of accounts, and the right to ask the court to remove an executor or estate administrator who is not protecting your interests. It’s not easy to know or enforce your inheritance rights, and the process of doing so can be complicated. Reach out to a skilled estate lawyer to get a better understanding of your rights and options.
Need an inheritance lawyer?
Death is an inevitable fact of life. Turmoil and suffering, on the other hand, are optional. It is possible to make major life transitions go more smoothly by working with an inheritance lawyer at Onyx Law Group.
A skilled inheritance lawyer can provide invaluable guidance and expertise in navigating the complexities of inheritance law and estate administration. You can confidently lay the foundation for protecting yourself and your family members in the event of illness, incapacity, or death. You can get clear legal advice and advocacy tailored to your unique situation should family disagreements or inheritance disputes arise.
Whatever your needs may be or whatever estate issue you are facing, take proactive steps by contacting us or reaching out at 604-265-9843 today.
Frequently Asked Questions
The answers below give general information about British Columbia law. They are not legal advice. For guidance on your own situation, speak with a lawyer.
What are my rights as a beneficiary of an estate in BC?
As a beneficiary, you are entitled to be treated honestly and kept reasonably informed by the executor, who must administer the estate according to the will and the law. You can generally expect information about the estate's assets and the progress of administration, and eventually an accounting of what was received and paid out. If an executor acts improperly, beneficiaries can ask the court to intervene. These protections come from the executor's fiduciary duties.
How do I find out if I am a beneficiary?
The executor is required to give notice of a probate application under section 121 of WESA to the beneficiaries named in the will and to those who would inherit on an intestacy. You can also search the wills notice registry at the Vital Statistics Agency to find whether a wills notice was filed and where a will may be located. If a grant has been issued, the court file can often be searched. A lawyer can help you obtain the information you are entitled to.
Do I have to pay tax on an inheritance in Canada?
Canada does not have an inheritance tax or estate tax, so beneficiaries generally do not pay tax simply for receiving an inheritance. Instead, the deceased's estate is treated as having disposed of their assets at death, and any resulting income or capital gains tax is paid by the estate before distribution. That means what you receive as a beneficiary has usually already been through the estate's tax process. Complex assets can raise their own tax questions worth checking.
How long does it take to receive an inheritance?
It depends on the estate. Executors usually wait until the 180-day wills variation period has passed before distributing, and they must also settle debts, taxes, and any claims first, so distribution often takes many months. Simple estates can move faster, while those needing probate, involving disputes, or holding hard-to-sell assets take longer. An interim distribution is sometimes possible where the estate can clearly cover its obligations. Asking the executor for a realistic timeline is reasonable.
What can I do if the executor will not distribute my inheritance?
First, ask the executor in writing for an update and an accounting, since delays are sometimes for legitimate reasons like unresolved taxes or claims. If the executor is unresponsive, mismanaging the estate, or acting in bad faith, beneficiaries can apply to the court to require an accounting, to compel distribution, or in serious cases to have the executor removed and replaced. The court can hold an executor personally responsible for losses caused by misconduct. Legal advice helps you choose the right step.
Can I contest a will if I was left out or given less than expected?
If you are a spouse or child of the deceased, you may bring a wills variation claim under section 60 of WESA where the will did not make adequate provision for you, subject to the 180-day deadline. You might also challenge the will's validity on grounds such as lack of capacity or undue influence. Which route fits depends on your relationship and the facts. A lawyer can assess whether you have a claim and how strong it is.
What happens to an inheritance when someone dies without a will?
When there is no will, Part 3 of WESA decides who inherits. A spouse with no children takes the whole estate, while a spouse with children receives the household furnishings and a preferential share of $300,000 or $150,000, depending on whether all the children are also the spouse's, with the rest divided. If there is no spouse, the estate passes to the children, and then to more distant relatives if there are none. The rules follow a set order rather than personal wishes.
Is a beneficiary responsible for the deceased's debts?
Generally no. The deceased's debts are paid out of the estate before anything is distributed, and beneficiaries are not personally liable for those debts. If the estate cannot cover what is owed, the beneficiaries usually receive less or nothing, but creditors cannot pursue them personally for the shortfall. Problems can arise if an executor distributes too early and leaves debts unpaid, which is one reason executors are cautious. A beneficiary in doubt should get advice before spending an early distribution.
Onyx Law Group represents clients in family law throughout British Columbia, estate and trust litigation, estate planning and probate matters. Consult with our experienced BC team at
(604) 900-2538