Wills & Estates
Why should you have a will?
If you die without making a legally binding will, the laws in place at the time will dictate who will receive your estate. This includes your money and everything that you own. If you have minor children (under the age of 19),should you not have named a legal guardian to look after them in the event both parents should die while the children are minors, then the government will decide who is best suited to look after them.
A will ensures that your family will know exactly what your wishes are. When preparing your will, your lawyer will also advise you about what rights your spouse and children have, and in the cases of blended families, what rights step-children do or do not have. The new Wills Estates and Succession Act (“WESA”) came into force in British Columbia on March 31, 2014, replacing several former statutes that previously governed wills and estates, and updates and modernizes this area of law substantially.
After March 31, 2014, the new probate rules apply to all applications for probate and administration, regardless of when someone died. One significant changes is that under the new legislation, marriage that occurs after you have made a Will no longer revokes that Will. Also, a beneficiary to a Will must survive the Willmaker for at least 5 days to take a gift under a Will.
The Wills Act has very specific rules about how a will must be signed and witnessed, and who may witness it. If the rules are not followed, the will could be found to be invalid, or certain gifts you had intended to give will be voided.
“I recently decided to update my Will and contacted Les Hunter. It was a distinct pleasure to be treated with such kind and courteous service, as well as receiving helpful guidance from such a knowledgeable and understanding source. – Doris E King, Nanaimo, B.C. “
Estate Law – Probate Information
Executors: In law, the term “personal representative” includes executors (where a will names an executor) and administrators (where a person dies intestate – or without a will, or an executor declines to take up the position, and the court must name someone to administer the estate).
The person who makes a will is a “Testator” (soon to be a “Willmaker”, effective March, 2014).
The position of personal representative (executor) is voluntary. Even if you are named in a will as executor, you may decline that position, which process is called “renunciation”. However, if you have started dealing with the estate assets, or “intermeddled” you cannot simply resign, or back out of the duties imposed, you must be formally discharged of those duties by a court.
Dealing with an estate can be time consuming and complex. Executor fees can vary anywhere from 1% to a maximum of 5% of the value of the estate, depending on the complexity of an estate. The personal representative can also be paid out of the estate for expenses he or she incurs personally in dealing with the estate. If the executor is also a beneficiary, he or she may be denied a fee unless the will makes it clear that the gift to the executor is given in addition to, and not instead of, the executor’s fee.
A personal representative is responsible to take possession of the assets of the deceased, pay the debts, look after insurance matters and keep proper accounts. Legally, title to any real property passes from the deceased to the personal representative, acting as trustee for the beneficiaries of the estate, and then passes to the beneficiaries. Note that there are some exceptions to this such as jointly held property and RRSP’s, or insurance policies with named beneficiaries. Property such as these are transferred automatically on death and do not depend on probate to make the transfer, and do not form a part of estate assets.
The first matter of business for an executor, and before the application for probate, will be to make funeral arrangements. For these expenses, the personal representative is personally liable under the Cemetery and Funeral Services Act , but he or she will eventually be able to be reimbursed from the estate. Often, a bank will permit payment of an invoice directly from the bank account of the deceased, to the funeral home.
A Grant of Probate issued by the B.C. Supreme Court is the Court document which confirms the will as the actual last will of the deceased, and confirms the appointment of the executor. If the estate is intestate, then, rather than probate (which applies to wills), the court will issue letters of administration to an administrator. If a will does not name an executor, if the executor predeceases the testator, or if the named executor declines the position, someone will have to apply to the court as administrator to handle all probate issues. Hunter Law recommends clients have an alternate executor named in their will to avoid this situation.
As soon as possible, the personal representative or executor commences the application for probate, collecting all the required documents. Probate requires numerous forms and documents. Much of the procedure is governed not only by the current Estates Administration Act and Regulations, but by the Rules of the Supreme Court.
In some instances, additional forms are required, such as where a beneficiary dies after the deceased but before probate, or where there appears to be a problem with the form of the will. Additional forms are also required when a minor is a beneficiary. Where a dispute arises over the validity of the will, the will may have to be subjected to “proof in solemn form” which means a hearing before a judge on the matter of the alleged technical problem with the will.
Probate fees are also required to be paid to the court. Currently, probate fees are calculated on the value of your estate, at date of death, in accordance with the following formula:
$0.00 No fees are payable for any estate valued under $25,000.00
$6.00 Payable for every $1,000.00 of an estate valued between $25-50,000.00; plus
$14.00 Payable for every $1,000.00 of an estate valued over $50,000.00
Assets, such as a house, held in joint tenancy or assets that do not pass through your estate, but by way of a designated beneficiary, such as RRSPs and life insurance policies, are not included in an estate for the purpose of calculating probate fees.
Not all wills or estates must go through the probate process. For instance, if all assets are held jointly with the deceased, or if the assets have directly named beneficiaries and do not form part of the estate. It can depend on the institution that holds the assets as to how they require the assets be disbursed.
Our offices employ highly competent and efficient estate support staff who can provide a direct contact with executors and beneficiaries regarding the administration of the estate. This results in convenient, efficient and prompt service to the client and a high level of communication with all parties involved. The executors are kept up to date on the status of the estate, and the length of time we anticipate it will take to obtain probate, and when a distribution of estate assets may take place.