Frequently Asked Questions for Wills and Estates

A well drafted Will allows you to direct how your estate is distributed among family, friends and charities. It also enables you to specify the guardian of your minor children if you die before they attain the age of majority. Although you are not legally required to make a Will, it is the best way to ensure that your estate passes to those you wish to benefit. If you die without a Will (intestate), your estate will be distributed according to law rather than your wishes (which is not to say that the government becomes the beneficiary of your estate – this only occurs if there are no other eligible beneficiaries). Without a guardianship appointment in a valid Will, if your child is orphaned as a result of your death, the Public Guardian and Trustee may become the guardian of your child’s estate and the Supreme Court of British Columbia will decide who cares for your child. This may not be the best result for your child!

An estate is all of the assets and possessions owned by an individual in his or her own name at the moment of death including: real property, personal and household possessions, vehicles, savings, shares, etc.

Assets that do not form part of an estate are those owned in joint tenancy (if the tenancy includes the right of survivorship) and assets for which a beneficiary has been named such as a registered retirement plan, life insurance or a tax-free savings account.

A will prepared outside of British Columbia may or may not be sufficient to deal with a person’s assets located in British Columbia. This will depend on the nature of the asset and whether the Will meets the province’s requirements for validity.

A power of attorney is a legal instrument that gives a person named as the attorney the authority to make decisions about the financial and legal affairs of the adult who appointed them (the “donor”). The authority of an enduring power of attorney continues during any subsequent mental infirmity of the donor.

General form powers of attorney granted under British Columbia’s Power of Attorney Act typically authorize the attorney to do anything that can be lawfully done by an attorney. The power of attorney allows an attorney to deal with banking and other financial matters on behalf of the donor including to sign cheques, deposit and withdraw money from the donor’s bank account, invest the donor’s money, arrange for the preparation and filing of tax returns and sign legal documents on behalf of the donor.

 An attorney should not, without specific authority, take on the donor’s responsibilities as a director of a company (such as signing a contract on behalf of the donor as director of a company) since directors cannot typically delegate their powers. Furthermore, an attorney, unless expressly authorized to do so, cannot make sales, transfers or charges of land in his or her favour. A power of attorney does not authorize the attorney to act on behalf of the donor with respect to health care and personal care decisions (a Representation Agreement is used to achieve this purpose).

If an adult in British Columbia becomes unable to manage his or her own legal and financial affairs because of infirmity or mental incapacity and the adult does not have a power of attorney in place there will be no one who can deal with his or her legal and financial affairs. In that case, a family member or other person (in some cases the Public Guardian and Trustee) must apply to the Supreme Court of British Columbia for a guardianship of the incapable adult’s estate. This is a lengthy, time consuming and expensive process that can be avoided by the much less expensive route of signing a power of attorney.

A Representation Agreement is a document that gives another person or persons (the "representative") the power to make health care and personal care decisions for the adult donor if he or she becomes incapable. The Representative has the right to access all of the donor’s health care information to facilitate making informed decisions.

There is legislation in British Columbia that fills the gap without the need for Court intervention in relation to health care decisions. But, there are limitations to relying on this approach. If a Representation Agreement is not in place, a person’s health care providers must choose a temporary substitute decision-maker who has limited authority to give, refuse or revoke consent to health care on the adult’s behalf. The authority of the temporary decision-maker is temporary (21 days) and limited in scope in terms of the health care provided (it does not cover personal care decisions). The process for appointment and re-appointment is expensive, time consuming, and burdensome on the health care providers

Probate is the process of obtaining a court order confirming that a Will is legally valid and the executor named in the Will has the authority to deal with the estate of the deceased person.

Not all estates require a Grant of Probate.  Modest estates that do not include land or large bank or investment accounts may be administered without the need to obtain a Grant of Probate.  Those estates that do require a Grant of Probate are assessed Probate fees on the market value of the assets at the date of death; in British Columbia fees are approximately 1.4% of the value of the estate.  

Assets that are held in joint tenancy such as homes and bank accounts with a right of survivorship, assets held in an inter vivos trust and assets which have a named beneficiary such as life insurance, registered retirement plans and tax free savings plans, are not part of the estate and, therefore, are not subject to Probate.  

Applications for Probate in British Columbia are made by filing a requisition and evidence in support of the application including a certificate of a Wills notice search, an affidavit of the executor attaching the original Will and codicils to the Will and any memoranda referred to in the Will with a detailed statement of the deceased’s assets and liabilities (both inside and outside the province of B.C) and the plan for distribution contained in the Will.  Also required is an affidavit advising the Court of the persons who inherit under the Will, those who would have inherited had there not been a Will (including separated spouses) and those entitled to claim against the Will under the Wills, Estates and Succession Act and an affidavit confirming that each of these parties has been served with notice of the Probate application.  In some cases, other affidavits may be required such as proof of execution on behalf of a blind person or someone who was unable sign his or her own name. 

Once the information is assembled and the documents finalized and submitted to the Supreme Court of British Columbia Probate Registry, the Grant of Probate is usually approved within 4 to 8 weeks, but this will depend on the Court's workload so the timing is subject to change.