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Estate Law in BC
There are 3 over-arching types of estate legal matters in British Columbia. They are:
- Estate planning such as writing a will.
- Estate probate which entails probating a will of a deceased person in order to distribute the estate to beneficiaries.
- Estate litigation which involves a person or persons challenging or contesting a will.
This site focuses on estate probate and estate litigation.
The Estate Probate Process in a Nutshell
The estate probate process in BC varies in complexity and duration. Every estate is different; however, we’re experienced at probating even the most complex estates.
The process in the nutshell starts with meeting the executor and reviewing the Last Will and Testament of the deceased.
From that point forward, our team gets involved in probating the estate as efficiently as possible.The probate lawyer and their team will:
- Locate and contact all heirs.
- Contact all financial institutions with whom the deceased has accounts and dealings.
- Perform a full accounting of the estate.
- Ensure all creditors claims are fulfilled.
- Finalize any outstanding tax matters. Sometimes we engage the assistance of Chartered Accountants for this process.
- Prepare and file all necessary Court and government documents.
- Finalize the estate by distributing the remaining assets to the appointed heirs as set out in the Last Will and Testament of the deceased.
- Please note that the above process is essentially what’s involved with a probate. However, there may be additional steps required depending on the estate.
Estate probate is the process of having the Court approve distribution of an estate’s assets to beneficiaries of the estate (with or without a will). Probate can be complex and requires a great deal of thoroughness, record-keeping, document tracking and completing paperwork for the Court.
Estate probate lawyers help with this process. Yes, an executor of a will is not required to hire a lawyer, but it’s often helpful. Mistakes are easily made. After all, a person’s estate can include many assets and/or liabilities you may not consider. A lawyer who is familiar with probating estates has systems in place and developed checklists to ensure that the probate process is completed thoroughly.
Do not confuse estate probate lawyers with estate litigation lawyers. Probate lawyers probate estates, whereas litigation lawyers start and litigate lawsuits. Estate litigation involves contesting a will (or defending a will challenge). Probate lawyers are usually solicitors while estate litigation lawyers are litigators (also known as barristers).
A Concise Guide to the BC Estate Probate Process
Once a loved one passes away, the distribution of their financial assets, real estate, and personal belongings is in the hands of the court. If your loved one prepared a will prior to passing away, the court will assign an executor to distribute all assets according to the will.
Do You Want to be Executor?
If you believe you have been named the executor in a will, you must verify that information with the last copy of the will drafted by the deceased. If the deceased provided you with a copy of the will, you must contact the Vital Statistics Agency to ensure the copy you have is the final will created by the deceased.
If the deceased did not provide you with a copy of the will or you believe there was a more recent will created by the deceased, you have a few options to verify they did name you as the executor:
1. Look for the will in the deceased persons personal belongings. All safety deposit boxes should be checked as well as all rooms of the deceased person’s residence.
2. Contact the lawyer who drafted the will for the deceased, if you have that information. The lawyer should have a copy of the file will drafted with the deceased.
3. Check with the Vital Statistics Agency to see if the deceased registered their will.
You may feel obligated to serve as the executor of the will because your loved one wanted you to fill that role, but take the immense responsibility seriously. You are committing to spend a lot of time properly distributing your loved one’s assets as they wished. You may also find yourself fighting legal battles if beneficiaries or creditors deem you negligent in this role. If the will is contested, the process can become long and complicated.
Set the emotional aspects of fulfilling your loved one’s wishes aside, and honestly assess whether you are the right person till this role. Speak with a lawyer to determine your role within the context of the specific will in which you have been left in charge. Determine what reimbursement you may legally receive from the will if you decide to take on the role of executor. Generally, executors are reimbursed for all associated fees, and most executors also receive a small percentage fee as compensation for their time.
Once you renounce your duty as executor, you cannot later decide to take the role back. Make this decision with great care.
To Probate or Not to Probate
If you decide to be the executor as named in the will, you will first have to determine whether the will needs to be probated in court. This is the process that allows the court to verify the validity of the will. Not all wills must be probated, but yours may need to be probated if any of the following criteria apply:
1. Someone challenges the validity of the will.
2. Other people have different copies of the will that they claim are the legitimate wills. Only one will can be approved to distribute a deceased person’s assets, and that will always be the final will they created.
3. Institutions holding assets of your loved one or involved in transferring those assets demand the will is probated before releasing funds.
You will likely need to probate the will if other beneficiaries question your role as executor or what you received through the terms of the will. In the case of a loved one with substantial investments, the bank holding those investments may require a probated will before entrusting you with those funds.
If a living spouse owned all of your loved one’s assets jointly and/or the assets are not substantial in value you will likely not be required to probate the will. Your role as executor of this type of will should be less demanding than your role over will with substantial assets not jointly owned by a living party.
Don’t Forget Probate Fees
As executor of a will, you will be held responsible for probate fees in accordance with the Probate Fee Act. You are only required to pay probate fees on assets that meet the following criteria:
1. Tangible property must be located in British Columbia.
2. Intangible assets must be owned by a deceased resident of BC.
3. All assets awarded to a personal representative will require a probate fee. A personal representative is not a joint tenant of the deceased and is not a designated beneficiary to the will.
4. The estate is valued at $25,000 or more.
Section 2(4) of the Probate Fees Act states that the executor is required t report assets discovered after probate to the court so probate fees can be paid as applicable.
The Wills Variation Act
Under the Wills Variation Act, children and the spouse of the deceased may petition the court to change the will. This right must be enforced within six months of the will being probated, so you may want to wait six months before releasing assets to beneficiaries. Another option is to have each child and spouse sign a release stating they will not petition the court for changes to the will.
The Wills Variation Act is important because it could land you in a lawsuit if you distribute assets improperly and someone does ask for changes afterward.
Executor Duties Checklist
1. Determine the will of the deceased person to be buried or cremated, if specified in the will. Note all funeral-related specifications in the will. You may want to consult with other loved ones of the decreased for these arrangements, but remember all final decisions are in your hands.
2. Securely lock the deceased person’s home. Make the police aware if no one is living in or supervising the home.
3. Redirect the deceased person’s postal mail to a safe location.
4. Notify the deceased person’s landlord if they rented property, and pay any outstanding rent payments.
5. Ensure utilities are paid in full for the deceased person’s home.
6. Determine if the deceased maintained a safety deposit box. If so, give your attorney photocopies of all documents you find in the box. You may find documents related to shares owned and securities held by the deceased person, plus a lot of other critical information needed to accurately and responsibly execute the will.
7. Inform all financial institutes that the deceased did business with and request lists of outstanding assets and liabilities.
8. Contact the deceased person’s insurers to obtain written confirmation of their benefits and claim forms as applicable. This is a good task to designate to your lawyer if you do not have substantial knowledge about insurance.
9. Verify the expiration date for all insurance policies maintained on the deceased person’s assets. Examples include insurance homes and vehicles.
10. Determine if the deceased is eligible to receive income from employers, pensions, dividends, interest, or any other type of outstanding income. Collect these funds and put them into the deceased person’s bank account.
11. Review the cheques written by the deceased prior to death and ensure they were legitimately issued.
12. Ensure any business owned by the deceased is properly managed. The will may contain guidelines for managing the business until it is handed over to the appropriate beneficiary.
13. Contact the deceased person’s employer to determine death benefits owed.
14. Cancel all pensions and annuities.
15. Consult with your lawyer to determine any further duties dictated by your estate probate process.
Estate litigation can be complex and involve many parties. It’s usually based on a party disputing a will (or distribution of an estate due to lack of will). An estate litigation lawyer may be hired to start the action or defend an action.
Hiring an Estate Lawyer in BC
The starting point is understanding what legal service you wish to have done. If it’s to have a will drawn up, hire an estate lawyer familiar with drafting wills. These types of lawyers often also probate estates (i.e. are solicitors).
If you’re an executor and need help with probate, hire a lawyer seasoned with probating estates. It’s a paperwork-intensive process that requires an experienced lawyer with systems and and office set up for effectively and thoroughly probating estates.
If you’re in need of a lawyer to start a lawsuit (or defend one) because you disagree with how an estate is being distributed, seek out a litigation lawyer who has experience with estate litigation.