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How To Get Your Inheritance Money in British Columbia


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  • How To Get Your Inheritance Money in British Columbia

Inheriting money can change your life for the better, particularly if it’s a large inheritance. To claim inheritance money in British Columbia, you typically need to be named as a beneficiary in the deceased’s will and follow the legal procedures for probate and estate administration. Unfortunately, the inheritance process can sometimes be slow and stressful. The reality is that it will take several months—and in some cases, years—before you receive an inheritance. Delays, disputes, and complications in the probate process can create difficulties. It’s helpful to know what to expect.

If you’re looking for experienced help to address delays or problems receiving an inheritance, our Probate and Estate Administration lawyers have extensive experience to draw upon when acting for estate beneficiaries. We proudly stand with those who seek legal recourse to secure their rightful inheritance, and we work with our clients to decide on the best options to meet their individual needs and goals. We welcome you to contact us today to schedule your free consultation with one of our estate and litigation lawyers.

In this article, we will have a look at inheritance rights and how the probate process works from the perspective of estate beneficiaries.

What Is a Beneficiary?

What Is a Beneficiary

A beneficiary is an individual or an entity (e.g. a charity or a trust) who receives property, assets, or money owned by someone else. A beneficiary may receive an inheritance by being named in a will or a trust. Moreover, they may receive property by being named as a designated beneficiary of registered accounts (e.g. TFSA or a retirement account such as an RRSP or RRIF) or a life insurance policy.

What distinguishes a beneficiary from an heir is that a beneficiary is chosen by the deceased and named in legal documents to receive specific assets or benefits, while an heir inherits property, assets, or rights from the deceased based on their familial relationship and the legal framework governing inheritance.

Types of Beneficiaries

We just discussed a few types of beneficiaries, including those named in a will to receive all or part of an estate, ones named to have the beneficial interest of property held in trust, and designated beneficiaries of registered accounts or life insurance policies.

There is another important classification of beneficiaries: primary and contingent. As the name suggests, a primary beneficiary is the first choice and has the first claim to the property or assets in question. A contingent beneficiary is the next in line; they only receive an inheritance if the primary beneficiary passes before inheriting or can’t be found.

Furthermore, another type of beneficiary is a residuary beneficiary. This is a person who receives what is not specifically left to a primary or contingent beneficiary of a will or trust. For example, the will may provide for a charitable donation of $10,000, with the “residue” of the estate (what is left after the charitable donation and outstanding debts of the estate have been paid out) going to the residuary beneficiary. A residuary beneficiary may also receive assets after they’ve already been given to the primary beneficiary. For example, property can be held in a trust or a life estate in favour of a primary beneficiary; once the trust is fulfilled, or the primary beneficiary dies, what is “left over” goes to the residuary beneficiary.

The Rights of Different Beneficiaries

The Rights of Different Beneficiaries

The right to receive an inheritance depends on several factors, including the person’s relationship to the deceased person, the combination of family members who survive the deceased person, and whether the deceased person left a will when they died.

The Inheritance Rights of a Spouse

In British Columbia, the surviving spouse or common-law partner of a deceased person has special rights. The Wills, Estates and Succession Act (“WESA”) defines a spouse as a common-law partner who lived with the deceased person in a marriage-like relationship for a period of at least two years leading up to that person’s death.

Here are some of the special inheritance rights of a surviving spouse:

  • If the deceased person died without a will, the intestate succession rules set out in WESA apply. According to those rules, the surviving spouse is entitled to a preferential share of the deceased’s estate. The general rule is that a surviving spouse is entitled to the first $300,000 of the deceased person’s estate and half of the remaining estate. The other half of the remaining estate is divided among any children of the deceased. If there are no children, the surviving spouse inherits all the estate’s assets. They also have special rights to the spousal home (the primary residence the spouses shared).
  • If the deceased person did leave a will, but the surviving spouse is disinherited or receives less than their fair share of the deceased person’s estate, they have the right to bring a wills variation claim under WESA s. 60. The court can vary the will to make just and adequate provisions for the surviving spouse.
  • If the spouses separate and one of the spouses dies before family law matters have been resolved, the survivor may be able to bring a Family Law Act claim against the deceased person’s estate to secure division of family property.

How to Get Your Inheritance Money as a Surviving Spouse

How you go about getting inheritance money depends on the circumstances. For example, if your spouse died without a will, an application to the BC Supreme Court will be necessary to start the inheritance process. Through this application, someone will be appointed administrator of the deceased’s estate (usually the surviving spouse, but another family member can apply to take on that role). Once the “estate grant” has been issued, the appointed administrator can begin the process of settling the estate and distributing estate assets in accordance with the intestate succession rules.

If you are a spouse who was disinherited or received less than what is fair, you will need to start the legal process under WESA s. 60 to ask the court to vary the will in your favour. Similarly, if you have a Family Law Act claim against a separated spouse’s estate, you will need to start the legal process by filing a Notice of Family Claim.

The Inheritance Rights of Children

The Inheritance Rights of Children

Children of a deceased person also have special inheritance rights. For example, if the parent died without leaving a will, the children of the deceased have a claim to receive a share of their parent’s estate. The share they are entitled to receive depends on whether their parent left a surviving spouse, and whether the surviving spouse is a step-parent of the children in question.

What if the child is unhappy with the inheritance in their parent’s will? While equal treatment of siblings is not a legal requirement, a child who is unfairly disinherited or who receives less than their siblings may be able to bring a wills variation claim to ask the court to vary the will in their favour. Minor children and dependent children will have a particularly strong claim in this regard, though financially independent adult children can also bring successful wills variation claims.

How to Get Your Inheritance Money as a Child

The legal process and steps to be taken to get inheritance money will depend on the circumstances and the nature of the child’s claim (e.g. a wills variation claim, a claim challenging the will’s validity, a claim against the deceased parent’s estate for child support under the Family Law Act).

There will also be special considerations if the child is a minor; in such situations, a litigation guardian or the Public Guardian and Trustee will be involved in the inheritance process. Trusts and trustees will be involved in managing the inherited money. We strongly recommend obtaining professional advice about the legal process in this situation.

The Inheritance Rights of Relatives

Surviving spouses and children of a deceased person have special inheritance rights. Other relatives generally do not have a high-ranking right to inherit from an intestate estate or the right to challenge a will if they are excluded. However, there are a few exceptions and potential avenues for other family members to claim inheritance money.

For example, if the deceased person died without a Will and without leaving a spouse or children, certain family members have the right to inherit from the deceased person’s estate, in accordance with WESA’s rules of intestacy. Alternatively, a family member may have a legal claim to enforce an expected inheritance using common law principles. When the substantial activities or services of a person are not recognized within a will, the person who gave that time and effort can make an unjust enrichment claim against the estate or for an interest in the estate’s assets.

How to Get Your Inheritance Money as a Relative

Family members such as cousins, parents, grandparents, nieces, and nephews of a deceased person should seek advice from an estate lawyer as soon as possible if they believe they are entitled to an inheritance or have been treated unjustly. We can explore options for getting inheritance money, ways to inherit real estate by way of a constructive trust claim to recognize your contributions, etc.

How to Get Inheritance Money: The Process of Claiming Inheritance

Navigating the Probate Process in BC

Navigating the Probate Process in BC

When a person dies leaving a will, their executor is the only person who has the legal and fiduciary responsibility to manage a deceased person’s estate. The executor’s primary responsibilities are to identify and protect the deceased’s assets (including buying insurance, if needed), pay debts, capital gains tax and expenses, file the deceased’s final tax return and pay taxes owed to the Canada Revenue Agency, make gifts to named beneficiaries in accordance with the will, and distribute the remaining “residue” of the estate among the beneficiaries named in the will. The “residue” of an estate is any real property or personal belongings that are not otherwise gifted to a specific beneficiary in the will.

To be able to carry out their responsibilities, an executor is typically required to go through the probate process. Probate is the legal process that confirms the validity of a will and grants the executor the authority to act on behalf of the estate. That is done by applying to the probate court to obtain an estate grant, called a Grant of Probate. An estate grant gives the executor the legal authority to “take over” the deceased’s assets and “convert” the ownership of assets, such as real estate and bank accounts, from the deceased’s name to the name of the estate. That is a necessary step before the executor can transfer assets or property from the estate to the beneficiaries named in the will.

The same is true when a person dies without a will (or without naming an executor): the person appointed administrator is the only person who has the authority to manage the deceased person’s estate. That person must apply to probate court to be appointed.

So, as you can see, there are several steps that must be taken before inherited assets or inherited money can be given to beneficiaries. It is only after the probate court has issued the estate grant that the executor or administrator can begin the process that ends with distributing assets in accordance with the will or the rules of intestacy. If you would like to know more about the timeline and steps involved in the probate process, have a look at this article on our website, which also includes a calculator to estimate estate taxes.

Documents You Might Need for Probate in BC

Documents You Might Need for Probate in BC

The executor or administrator will be responsible for preparing any legal document needed to apply for probate or transfer assets. That typically includes court forms, affidavits, an inventory of the deceased’s debts and assets (including their fair market value as of the date of death), and title transfer documents.

If you need to make a claim to enforce your inheritance rights, you will need to gather documents and information to support your claim. You may need previous wills, bank statements or other documents from a financial institution to show suspicious activities, documents relating to a significant transfer of property or money that you wish to challenge, etc. Reach out to us for professional guidance on what you’ll need to prove your inheritance claim.

Resolving Disputes and Delays in Inheritance Cases

Disputes and delays are common in inheritance cases, and can be a result of contested wills, incomplete documentation, or executor misconduct. Probate is a complicated process, even for seemingly simple estates. There are built-in waiting periods that apply, such as the 21-day period to provide notice to beneficiaries of the intention to apply for probate, and the 210-day period during which an executor must not distribute the estate without beneficiary consent or a court order. The 210-day waiting period is needed to allow time for any claims for maintenance from the estate—a.k.a. a wills variation claim—to be brought.

While there is no strict deadline, there is a general rule of thumb on how long the inheritance process should take. In BC, an executor 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 death, or from the date the probate application is granted (if it is necessary to apply to probate court).

If the executor is taking too long or not keeping beneficiaries updated, there are legal options to move the process along or remove the executor from their role. The presence of any disputes or claims against the will or the deceased’s estate will also cause delay as asset distribution is, for the most part, put on hold until the legal process is finalized to settle the dispute.

To manage delays in inheritance cases, it’s crucial to understand the province’s estate laws and get legal advice early on. Keep the lines of communication open with everyone involved and explore options like mediation to speed up the process. Make sure to document all conversations and actions to promote transparency and work toward a resolution smoothly.

Financial Aspects of Receiving Inheritance

It’s a good idea to think carefully about what you do with inherited money or inherited assets. You may want to sell the inherited assets to pay down debt, do some retirement planning, or purchase a vacation property. Whatever it is you choose to do, you should consider consulting with a financial advisor, particularly if it is a large inheritance.

Inheritance Taxes in BC: Is Your Inheritance Taxable?

Inheritance Taxes in BC: Is Your Inheritance Taxable?

 

Canadian inheritance tax laws are not the same as the laws in the US. There is no inheritance tax in Canada. A cash gift or inheritance is tax-free in the hands of the person receiving it. The recipient doesn’t have to pay taxes on money and doesn’t have to report it as income.

There are tax implications, but taxes owed are paid by the deceased’s estate. For example, certain investments are considered “cashed out” at their fair market value, and certain real property is deemed to be sold at fair market value when a person dies. Any increase in value (a capital gain) is included as income on the deceased’s final tax return. The estate pays the capital gains tax. What remains after taxes owed have been paid can be distributed to beneficiaries by the executor.

Professional Guidance on the Inheritance Process

You should not hesitate to seek professional advice if you have concerns about receiving an inheritance. The probate process is complex. Many complications can arise that lead to delays and disputes. Professional advice from an experienced estate lawyer can help you understand your legal rights and legal options to get your inheritance money without delay.

Reach out for a free consultation with the probate and estate lawyers at Onyx Law Group today. We are skilled at advocating for beneficiaries and using our expertise to make the process of receiving an inheritance go as smoothly as possible, regardless of complexity or issues presented by the estate.

We are proud to offer our legal services to the people of Vancouver, BurnabyNew WestminsterSurreyCoquitlam, Kelowna, and all other surrounding areas.

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Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at 
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