BC estate law covers a lot of ground. It includes estate planning (Wills, trusts, incapacity planning) and the law that applies if a family member dies without a Will. Estate law also includes estate litigation, which may be necessary if there are questions about the validity of a Will, suspicions that a will maker lacked capacity or was unduly influenced, or claims that a Will failed to make adequate provision for a deceased’s spouse or children, for example.
You want to get a solid estate plan in place, avoid pitfalls, and be prepared if the unexpected arises. The right legal advice and guidance will make it easier for you to cover that ground. If you live in BC or are planning to move here, it is so important to understand estate law and how it applies to your needs, goals, and circumstances. Read on for a general overview of estate law in British Columbia. Don’t hesitate to reach out to our team of estate lawyers and litigators if you want to discuss your unique situation.
A Will is a legal document that solidifies your wishes regarding the distribution of your estate upon your death. There are certain basic legal requirements that must be met to make a valid Will. BC’s Wills, Estates and Succession Act states that to be valid, a Will must be: (1) in writing, (2) signed at the end by the will maker, and (3) signed in the presence of two witnesses. If a Will doesn’t meet these requirements, it may not be enforceable, which can result in costly litigation and your estate being distributed in a way you did not intend.
Beyond those basic requirements, there are many other considerations when creating a valid Will in BC. Who are your beneficiaries? Have you made adequate provision for your dependent family members? A Will can be challenged if it does not make proper maintenance for the deceased’s children or spouse.
You must also consider: What do you own? How do you own it? What assets form part of your estate and what will pass outside of your estate? Assets held jointly or in trust are not part of your estate. Property given as a gift during your lifetime does not form part of your estate on death. Similarly, insurance proceeds and RRSPs don’t form part of your estate.
While you can prepare your own Will, you are likely to miss important elements or heirs, which will end up costing you and your family members in the long run. Instead, consider sitting down with an estate planning lawyer. The process is fairly simple. The estate planning lawyer will ask you about your assets, debts, goals and wishes, then help you create an estate plan that covers all aspects.
For some, a Will is enough. For others, putting property into trust or making property transfers during their lifetime may offer great benefits and better achieve their goals. A lawyer can help ensure that your Will is legally valid and covers all issues, which will minimize the likelihood that your Will winds up as an estate litigation matter. Another bonus: your lawyer can advise you on the benefits of powers of attorney and other incapacity planning options.
The executor is the person appointed in your Will to act as your personal representative after your death. It is an important role that comes with a lot of responsibilities. Your executor’s basic duties include handling the funeral, paying proven debts left behind, locating beneficiaries, filing tax returns with the Canada Revenue Agency, distributing estate assets, and other personal matters.
If you die without a Will, if your Will does not appoint an executor, or if the person appointed as executor in your Will dies before you and there is no alternate executor, certain individuals can apply to be appointed the “administrator” of your estate. The court-appointed administrator will be your personal representative and have the same responsibilities as an executor.
Not all wills require probate in BC Supreme Court. But many do. Your personal representative (the executor or administrator) often finds out that a probate application to the Supreme Court is necessary when they try to deal with financial institutions and registered property, such as money in bank accounts, real property, charge cards, or vehicles.
Probate is always necessary if you own real property in British Columbia in your own name or as tenant in common at the time of your death (as opposed to joint ownership registrations with the right of survivorship).
Our probate lawyers prepared this overview of the steps to obtain probate. It also contains a probate fee calculator (probate fees are paid to the BC Supreme Court Registry) and discussion of strategies to avoid or minimize probate fees.
The general rule of thumb is that an estate trustee has one year to gather the estate assets and settle the affairs of the estate. This is known as the “executor’s year.” It begins to run from the date of the deceased’s death, or from the date the grant of probate (if it is necessary to apply to probate court). The estate settlement process can take longer if the estate is complicated, or if issues arise such as a challenge to the validity of your will, or a wills variation claim by the deceased’s spouse or children.
A person who dies without a Will is said to have died “intestate.” Without a Will, your estate will be divided according to BC law, regardless of what you may have desired or chosen. The administration of your estate will be carried out by a court-appointed administrator.
When an intestacy occurs, BC law dictates how the deceased person’s estate must be distributed. The BC Wills, Estates and Succession Act sets out the detailed rules for intestate estate administration and who inherits when there is no Will. In general, when a person dies without a Will, the “intestate successors” who inherit their estate include their surviving spouse and closest next-of-kin (deceased’s child, grandchild, parent, etc.).
Distribution of the estate depends on the value of the deceased’s estate and the combination of relatives the deceased leaves behind (heirs at law). Our estate law team prepared this article with more particulars of the intestate successor scheme if you would like to know more.
Undue influence and lack of capacity are two of the most common challenges to validity of a Will or trust. They are also frequently used to set aside gifts or transfers of assets made during a person’s lifetime. Undue influence involves situations where a person uses power over another person to his or her own benefit, to the degree that the transfer or legal documents are not the product of the victim’s “full, free and informed thought.”
Instruments such as trusts, Wills, gifts, or transfers of assets can be challenged if there is suspicion that the person lacked the necessary mental capacity to execute these documents. When talking about Wills in particular, in order to prove incapacity, it must be shown that the person (1) did not understand the nature and effect of what he or she was signing, (2) did not know the size and composition of his or her estate (or the value of his or her estate), (3) could not identify who the will maker should be providing for (i.e. know his/her legal and moral obligations to family members such as their surviving spouse and children), and (4) was not free from delusions regarding making the Will.
An estate litigator can explain the options and other rules for challenging validity based on undue influence and/or lack of capacity.
If, after court proceedings in the BC Supreme Court, a Will is found to be invalid due to incapacity or because it was executed under undue influence from another person, it can be set aside. A previous valid Will will take its place, if one exists. If the deceased person had no other Will, his or her estate will be distributed according to the laws of intestacy, which are set out in the Wills, Estates and Succession Act (discussed above).
Undue influence can be used to set aside a gift or transfer of an asset made during a person’s lifetime (an “inter vivos” gift or transfer). If undue influence or incapacity is established, the gift or transfer is set aside and the property in question is returned to the victim. Proper estate planning and independent legal advice can go a long way to avoiding legal challenges based on incapacity and undue influence.
We’re here to help you navigate the complex web of laws and facts that make up estate law. Our team is always on hand with answers to even your most difficult questions. Whether it’s avoiding common pitfalls or identifying creative ways to make claims; we are skilled, compassionate and well-versed when it comes to handling matters of your or your family’s estate.
We believe it’s important to know your legal rights and obligations before making any decisions. CONTACT US today for trusted legal advice and guidance.
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