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Each province and territory of Canada has its own laws regarding wills. Below is information summarising the laws applicable to the wills of residents of British Columbia, or to those who own property located in British Columbia.
Because each individual's situation is different, it is recommended to consult a lawyer for assistance in preparing a will.
A will can be made by any person who is:
A person under 19 years can make a will in two situations:
British Columbia wills and estates laws apply to:
There are certain formalities which must be complied with to make a valid will, including:
A testator has an option of filing a Wills Notice with the British Columbia government. A Wills Notice identifies that a will has been registered and describes the person who has made the will, where the will is located, and the date of the will. It is not required by law to file a Wills Notice; however, the courts require that a will search be conducted before an estate can be probated.
A will can be revoked in the following ways:
A testator must provide "adequately" for his or her spouse and children. A court may vary the provisions of a will if it does not adequately provide for the proper maintenance and support of the testator's spouse and children.
A gift to a child or spouse made during the will maker's lifetime may reduce the share that person is entitled to receive from the will.
After a death, the executor named in the will is usually required to obtain a "Grant of Probate" from a Court in British Columbia. This provides the executor with authority to deal with estate assets. There is very limited access to estate assets until the Grant of Probate is issued.
If a person dies without a will, their estate is distributed in accordance with British Columbia's "intestacy" laws. A person who wishes to administer the estate must apply to a Court in British Columbia to obtain a "Grant of Letters of Administration."
Intestacy laws prescribe that the estate will be distributed as follows, in the listed priority:
There is no "inheritance tax" payable in Canada. However, the estate must pay probate fees if the estate is probated. The probate fees are 1.4 percent of the gross value of the estate.
In some circumstances, Property Transfer Tax is payable on the transfer of legal title of the property of a deceased person.
All debts of the deceased person must be paid, and no creditor can be given priority treatment to the detriment of other creditors.
A final income tax return must be prepared and filed, and any taxes owing must be paid.
The British Columbia government anticipates bringing in new legislation in 2011 that will change the laws of estates and wills. A few of the anticipated changes are: