wills and estates law
Focus Law provides legal advice on matters as it pertains to planning for death or incapacity and on legal matters arising out of the probate or administration of an estate. The legal services offered include:
- preparation of Wills, Representation Agreement, Living Will, Power of Attorney, Nomination of Committee;
- legal representation with respect to a court application to have a committee appointed under the Patients Property Act;
- advice to executors, administrators, and/or committees on their role and various duties;
- application for probate;
- application for letters of administration
- preparation of accounts for the approval of the estate beneficiary(ies);
- legal representation on either a full service or limited-services basis on a Wills Variation Act claim
Click on the subjects below for more information on:
Planning for the future
Taking steps to plan for the future provides evidence of your intentions and wishes. Planning for the future can help avoid or minimize conflict and dispute between family members following incapacity or death.
Purpose of making a will
A will is a document that sets out the testator's wishes with respect to his/her intended beneficiaries, the manner in which the estate will be distributed to the intended beneficiaries, and appoints the estate's legal representative (i.e., the executor) upon the testator's death.
Testamentary Freedom & the Wills Variation Act
A person has the freedom to determine how his/her estate will be distributed; however, this freedom is subject to the court's discretion to vary the will pursuant to the Wills Variation Act. The court may step in to vary a will where the testator does not make adequate provision for the proper maintenance and support of a spouse or child.
Dying without a will
When a person dies without a will (i.e., dying intestate) in British Columbia, the intestacy provisions of the Estate Administration Act sets out the mandatory scheme of distribution of a person's estate.
The effect of the mandatory distribution scheme of the Estate Administration Act may have the unintended effect of benefitting individuals you do not intend to benefit or disinheriting certain individuals you intend to benefit. For example, if you die without a surviving spouse or child, the Estate Administration Act mandates that your estate shall be divided equally to your parents or surviving parent.
Power of Attorney
A power of attorney is a document that is used for financial and legal matters. The appointment of an attorney gives that person the legal authority to make decisions with respect to your finances and property in your absence or in the event of your mental incapacity. Unless you restrict the powers of your appointed attorney or make a time-limited power of attorney, a general power of attorney will permit your attorney to do anything that you can lawfully do.
The broad powers that an attorney exercises with respect to financial and legal matters requires you to carefully consider who you appoint as your attorney. In deciding who to appoint as your attorney, you should consider whether you trust the person and if you trust that person's ability to exercise sound judgement on your behalf.
A power of attorney is terminated in the event of a bankruptcy, mental incapacity, or death. If you wish for your attorney to be able to continue to act on your behalf in the event that you become mentally incompetent, you need to make either an enduring power of attorney or a springing power of attorney.
A representation agreement is used for the appointment of a representative to make personal care and health care decisions on your behalf in the event that you become mentally incompetent.
The Representation Agreement Act permits two types of representation agreements to be made; that is a Section 7 Limited Agreement or a Section 9 General Agreement.
A Section 7 Limited Agreement authorizes the named representative to make routine decisions with respect to an adult's personal care and financial affairs. Some examples of routine activities as identified in s. 2(1) of the Representation Agreement Regulations include:
- redirecting mail;
- making contributions to RRSPs;
- paying bills.
A Section 7 Limited Agreement does not cover activities that are not routine management activities as identified in s. 2(2) of the Representation Agreement Regulations. Some of those non-routine activities include:
- using or renewing a credit card or line of credit;
- revoking or amending a beneficiary designation;
- purchasing or disposing of real property.
A Section 9 General Agreement is meant to deal with complex personal and health care decisions such authorizing the named representative to refuse consent to life support care or treatment, or to consent to specified kinds of health care even though the adult is refusing to give consent at the time the health care is provided.
Personal Declaration (or "Living Will")
A personal declaration or "living will" is a written direction to family members, friends, and doctors stating your wish about end of life medical treatment and your wish to die a natural death with dignity. The living will states that where there is no reasonable expectation of recovery from extreme physical or mental disability and where death is imminent, you wish for your care to be limited to support and comfort, and that no active acts of resuscitation be undertaken.
The intentions set out in the living will may alleviate any anguish a family member may face when called upon to make a decision about medical intervention in an end of life situation. It may also avoid conflict between family members who have different beliefs with respect to life-sustaining medical treatment in an end of life situation.
A living will is not a substitute for a representation agreement.
Nomination of Committee
Making a nomination of committee permits you to name the person who you would like to make financial and health care decisions for you in the event that you become incapacitated. If a court application under the Patients Property Act becomes necessary in the event that you become mentally incompetent, a nomination of committee will identify the person of preference to the court.
You may make a nomination of committee appointing one person to act as committee of both your financial affairs and health care related matters or you may make separate nominations of committee for financial affairs and for health care related matters.
Application for probate or letters of administration
Where the deceased has left a valid will, the executor will have to apply for probate. Applying for probate is an application to the court to prove the validity of a will.
An application for letters of administration will have to be obtained in the event where the deceased died intestate (i.e., without a will). One may have to apply for a different type of grant of administration depending on the circumstances. For example, an application for administration with will annexed may have to be obtained where there is a will but the executor has renounced his/her appointment or where the executor has predeceased the testator or died without proving the will.
Probate fees are payable on the gross value of the real and tangible personal property belonging to the deceased situated in British Columbia.
The Probate Fee Act sets out the probate fee scheme applied in British Columbia. In addition to a basic application fee of $200.00, probate fees are calculated on the following basis:
- $6.00 for each $1,000.00 or part of $1,000.00 of the value of the estate in excess of $25,000, up to $50,000.00, plus
- $14 for each $1,000.00 or part of $1,000.00 of the value of the estate in excess of $50,000.00.
Probate fees must be paid to the probate registry before the grant of probate or letters of administration will be issued.
Accounting to Beneficiaries
If you are an executor or administrator of an estate, you have a duty to account to all persons who have a beneficial interest in the estate, to respond to requests for and to provide information on the progress of the administration.
As an executor or administrator, you should keep a detailed record of all transactions undertaken on behalf of the estate. This record will assist you in accounting to the beneficiaries. A detailed record of the time that you spend on all activities on behalf of the estate may be required if you wish to claim remuneration for acting as the executor or administrator.
An executor may fulfill his/her duty to pass accounts either formally or informally. A formal passing of accounts involves bringing an application in court to have the accounts approved. A formal passing of accounts may be avoided by obtaining the written approval and consent of the accounts by all persons to whom the duty to account is owed.
The personal representative is required to pass his/her first accounts within two years from the date of issue of the grant of probate or letters of administration.
Advice to Executors
An executor will face a variety of legal issues in the course of his/her administration of an estate. In the first instance, an executor should make a decision on whether to act as executor on an informed basis. This is necessary because the executor may be faced with potential personal liability arising from a breach of trust. An executor should also be aware of the duties required of him/her such as paying debts of the deceased, notifying beneficiaries, obtaining insurance to protect assets against perils, keeping proper accounts and safeguarding the assets of the estate.
Advancing a claim against the Estate
Wills Variation Act
The Wills Variation Act is legislation that permits a spouse or a child to start a claim against the estate if he or she feels that the will does not adequately provide for his or her proper maintenance and support. Pursuant to s. 2(1) of the Wills Variation Act, a testator has a duty to make adequate provision for the proper maintenance and support of a surviving spouse and child(ren). In the event that the court determines that the testator has failed to discharge this duty to make adequate provision, the court has the discretion to make an order varying a will so that a provision is made out of the testator's estate for the testator's spouse or child.
Limitation Period to vary a will
A claim to vary a will must be commenced within six months of the date of issue of the grant of probate, grant of administration or an order resealing a grant issued from another jurisdiction.
* The information provided is with reference to the current Estate Administration Act and Wills Variation Act. This information may be subject to change with the coming into force of the Wills, Estate and Succession Act, S.B.C. 2009, c. 13 on September 1, 2011.
Page last updated on: July 27, 2011.