With a global city like Vancouver and the natural beauty that surrounds it, it is not uncommon to receive inquiries from clients outside of Canada regarding property or assets owned by their family within British Columbia (“B.C.”). Some of these inquiries are for advice on how to efficiently transfer these assets on death. The remainder seek advice about what to do now that the owner of the B.C. assets has passed away.
Throughout my practice, I have assisted many out-of-country executors and administrators with estates that owned property and bank account assets in B.C. where the deceased and his/her family had no ongoing connection to the jurisdiction. The deceased may have resided here in their younger years, bought property, moved away and always planned to return. Or, they may have inherited a cabin in Whistler or on one of the Gulf Islands that their children and grandchildren continue to enjoy and utilize. Or, they may have bought a home here for their children to live in while attending one of our many post-secondary institutions. There are many reasons why folks from around the world own property or have assets in B.C..
When the foreign owner dies, their B.C. assets become part of their global estate to be divided according to their Will or the intestacy rules set out in B.C. law. An application to the Supreme Court of British Columbia (the “Court”) is usually required in order to transfer these assets to the deceased’s executor or administrator so that they may be administered as part of the deceased’s estate.
Who may apply to be appointed the personal representative of the estate depends on whether there is a Will naming an executor. If there is no Will or, if the named executors are unwilling or unable to apply, then another close family member, such as a spouse, child or intestate successor, may apply.
Most applicants for a B.C. estate grant will seek out the assistance of a lawyer to prepare and file the application because these applications and the procedures to be followed are quite technical and complex in nature. For example, several different types of applications are available depending on the particular circumstances of the estate of the person who died residing outside of B.C. It is difficult for a lay-person to know the correct form of application to use that will be accepted by the probate registry. Some of the factors relevant to the form of application include whether the deceased died testate (with a Will) or intestate (without a Will), whether an estate grant has already been obtained in another jurisdiction, and if so, whether that jurisdiction is a ‘prescribed jurisdiction’ according to section 3 of the Wills, Estate and Succession Regulation, which includes any member of the British Commonwealth of Nations, any of the states of the United States of America, and Hong Kong. A different procedure must be followed when an estate grant has been obtained in a jurisdiction other than one of the prescribed jurisdictions. In addition to determining the type of application, the process may be complicated by other factors such as deficiencies in or issues concerning the appearance of the Will, if the will or foreign estate grant are in a language other than English, difficulty arranging for an appropriate notary or lawyer to commission the required affidavits overseas, and the absence of a trust for any minor (underage) or disabled beneficiaries in the Will (which can necessitate the involvement of a provincial government office called the Public Guardian and Trustee).
In addition to the services a B.C. lawyer can provide to obtain an estate grant from the Court, the applicant will also benefit from receiving advice from a B.C. lawyer about the laws concerning the administration and distribution of the estate and the legal rights and responsibilities of an executor or administrator. This advice should be obtained soon after the deceased’s death and should continue until the estate is fully administered. Many clients find this advice incredibly important once the estate grant appointing the estate representative is obtained and the executor or administrator can legally take steps to administer the estate. Those steps may include transferring all estate assets into the name of the estate or the executor/administrator, making arrangements to pay all debts and expenses of the deceased and their estate, preparing and filing Canadian income tax returns on behalf of the deceased and the estate, obtaining advice around the timing of making distributions, distributing assets to the beneficiaries, obtaining advice around selling real estate or transferring it to the beneficiaries, and a dealing with multitude of many other issues and considerations which may arise. It is and would be difficult for a non-resident person to carry out these duties, or to do so without exposing themselves to undue risk, without the assistance of a B.C. lawyer.
It is also important to keep in mind that an estate representative can be held personally liable if they act in a way that breaches their duty to the beneficiaries. Legal advice and guidance can help to ensure that an estate representative act in a way that complies with the law and minimizes any liability to the estate representative.
Contact Veronica Manski, Probate and Estate Administration Practice Leader, for assistance with your estate inquiry.