Wills and Inheritance Law in British Columbia
Understand the various types of Canadian will available in British Columbia, and how to go about making one. Also an overview of the inheritance implications for a foreigner and their family resident in Vancouver...
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.
Making a Will in British Columbia
A will can be made by any person who is:
- Mentally competent
- Over the age of 19 years
A person under 19 years can make a will in two situations:
- If he/she is or was married, or
- If he/she is a member of the military.
Application of British Columbia Laws
British Columbia wills and estates laws apply to:
- British Columbia residents
- Non-British Columbia residents, with respect to property located in British Columbia
Legal Validity of a Will
There are certain formalities which must be complied with to make a valid will, including:
- The will must be signed at the end by the testator
- The testator must sign the will in front of two witnesses
- The two witnesses must be present at the same time
- The two witnesses must also sign the will
- The two witnesses cannot be beneficiaries or spouses of beneficiaries named in the will
Registering a Will
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.
Revoking a Will
A will can be revoked in the following ways:
- By the marriage of the testator, unless the will is made in contemplation of that particular marriage
- By the making of a new will
- By a written declaration of the testator's intention to revoke the will, if certain conditions are met
- By the destruction of a will
Inheritance of Spouse and Children
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.
Estates and Probate
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.
Dying without a Will
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:
- If there are no children and a spouse, the estate goes to the spouse.
- If there is no spouse and only children, the estate is divided equally among the children. If a child predeceases the parent, but leaves children (for example, grandchildren of the deceased person), then the grandchildren inherit their parents' share of the estate.
- If there is a spouse and children, the spouse is entitled to:
(a) the first $65,000
(b) a life estate in the home
(c) household contents
(d) half of the residue if there is one child, or 1/3 of the residue if there is more than one child.
The remainder is divided equally among the children.
- If there is no spouse or children, the estate goes to the parent(s).
- If there is no spouse, children or parents, then the estate is divided between brothers and sisters. If a brother or sister predeceases but leaves children (the nieces and nephews), then the nieces and nephews inherit their parents' share of the estate.
- Alternatively, the estate is divided between nieces and nephews.
- Alternatively, the estate is divided between the next of kin of equal degree of blood relation.
Probate Fees and Other Estate Expenses
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.
Anticipated Legal Changes
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:
- A person as young as 16 could make a will
- The court will have discretion to allow a will even if it was not properly executed
- The distribution of an intestate's estate will be slightly changed
Alexander Holburn Beaudin & Lang LLP
Barristers & Solicitors
P.O. Box 10057
2700 - 700 West Georgia Street
Vancouver, BC V7Y 1B8