New Wills Law for BC

UPDATED

This is a summary of British Columbia’s new Wills, Estates, and Succession Act, which was to come into force in early 2012 and has been delayed to Spring 2013. The new Act repeals the Estate Administration Act, Probate Recognition Act, Wills Act, Wills Variation Act, and sections of the Law and Equity Act, and Survivorship and Presumption of Death Act.

The delayed reading of the Act into law has been done to allow people more time to understand the changes, according to the government. The proposed changes described below are still expected to become the law.

Note that the changes will not make a will written before the Act passes invalid, but it may change how that will is interpreted. For example, gifts to children during a will-maker’s lifetime will not be treated as advances out of the estate under the new law, and that interpretation will be made under the new law even if the will was written before the new Act came into force.

Here is a point form summary of the major changes:

General

  • Definition of “spouse” includes anyone in a marriage-like relationship for at least 2 years.

Intestacy (Dying Without a Will)

  • No change where spouse survives without issue (now called “dependants”)
  • If spouse survives with dependants, spouse receives household furnishings and spousal preferential share
  • If all descendants are descendants of the intestate and the surviving spouse the spouse’s preferential share is $300,000
  • If one or more descendants are not descendants of the surviving spouse, the spouse’s preferential share is $150,000
  • After payment of spouse’s preferential share 1⁄2 residue goes to spouse and 1⁄2 is divided among descendants
  • Personal Representative of the intestate is forbidden to dispose of spousal home for 180 days from death of intestate to allow surviving spouse time to decide if he/she wishes to purchase it
  • If no spouse or descendants, all to the intestate’s parents equally
  • If no parents then to descendants of parents
  • If no spouse, descendants, parents or descendants of parents then to grandparents or descendants
  • If no heirs, then to government per Escheat Act as before

Designations of Beneficiaries of Benefit Plans

  • Benefits payable to designated beneficiaries in RRSP and Insurance plans are not part of the estate and not subject to claims of deceased owner’s creditors

Wills

  • Marriage no longer revokes a will
  • Legal age for making a will changed to 16
  • Legal age for witnessing a will is 19
  • Gifts to or appointment as executor of someone who at death of will-maker is no longer a spouse of the will-maker lapse because former spouse is deemed to have died before the will-maker
  • Gifts to children during will-maker’s lifetime are no longer treated as advances out of the estate

Survivorship

  • In common tragedies, the seniority presumption that oldest died first is repealed and replaced with presumption that each died before the other
  • And, when joint tenants die in a common tragedy the property is deemed held in tenancy in common
  • For gifts in a will, a beneficiary who does not survive the will-maker by 5 days is deemed to have died before the will-maker

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102 thoughts on “New Wills Law for BC

  1. •”Gifts to children during will-maker’s lifetime are no longer treated as advances out of the estate
    ????” — What are the legal ramifications if any, if previous to death we give most of our Estate and/or registered property to our sons who are listed beneficiaries at this time?

  2. Can non-Canadian citizen/resident, i.e. Filipino who lives in Philippines, be designated as legal heir in British columbia and Canadian laws?

  3. Can a married Canadian (British columbia) designate 80% of the estate to his parents, brothers and sisters as heirs? These potential heirs live in Philippines and non-Canadian residents or immigrants.

  4. When a single parent has a terminal illness. What if any, advantage is there to transering ownerhsip of the home to the three children

    1. i would think that would alleviate inheritance taxes to the children. it would no longer need to be held, they would be the owners, i would think appointing a trustee with power of attorney until they are age of majority would be helpful to carry out plans

  5. my parents were separated for 20 months when my father died and he had not changed his will which was 8 years old at the time and now my mother is executor and the main beneficiary. is there something in the act that says because of their separation that she would not be entitled to be the executor and or beneficiary?

    also they did not have a separation agreement but my father went to see a lawyer two weeks before he passed and expressed his desire to do so, but never made it back to finalize it. my father did not live in the family home, yet it was still a property registered as joint tenants when my father passed and we were about to severe that to tenants in common for him.

  6. Can the witnesses of a Will, be a husband & wife whom live together. A witness a Will of an Elder friend? The husband & wife are not mentioned in the Will.

  7. I was at a seminar recently and was told that self help will kits are not legal and that all BC wills must be drawn up and signed by an attorney or notarized is that true.

    1. No, that is absolutely not true, it is nonsense. Self-Counsel Press has been selling self-help wills books and kits (prepared by lawyers!) for more than 40 years. Any lawyer or notary claiming that “self help will kits are not legal and that all BC wills must be drawn up by an attorney or notarized” is simply not telling the truth. Any competent adult may write their own will, have two adults who are not beneficiaries of the will jointly witness you signing your will, and the document is legal in BC (and Canada).If you have a substantial or complex estate, then we recommend that you employ a lawyer to help you prepare your will. But for the average Canadian, with a simple estate, it is quite easy to prepare your own will and save yourself the hundreds of dollars per hour a lawyer would charge. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  8. my mother died in alberta, i'm the executrix and i have a grant for probate here, but her property is in b.c. i tried to hire a lawyer, but made a mistake and came away with no new knowlege or advancement of the resealing. just a little poorer. i can't afford legal fees, so am trying to do this myself.
    do i still have to notify everyone as it says in the Wills variance act, or can i just notify the people who were named in the will, as i did here in alberta?
    i've incurred a lot of expenses in seeing that her property was maintained, and i don't know when i should present these expenses in order to recoup my money. is it right at the end after i've done the taxes, or should i put it down in the accounts when i send in the documents to the Court of Queen's Bench? i'm pretty confused, as you can see. it was so much easier here in alberta.

    I did buy books from Queen's Council and i'm not sure if everything has changed. my mother died 5 years ago. will I be able to use the new laws, as they seem so much easier.

    1. You will need to apply in BC and you can use the new laws. Two kinds of notification are required: (1) all named beneficiaries and (2) you will need to place an advertisement in case there are monies owed. Both are described in the book. Your expenses should be documented and claimed when you file your documents with the court. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  9. My father died 1,5 yrs ago. His wife, who is not me or my sisters mother, is still in their home & has all assets, vehicles, furnishings etc.I don't know what are we entitled to or how to go about protecting what should eventually pass over to me & my sister. If all their stuff is in both their names does she automatically get everything?

  10. When a person dies their estate normally undergoes probate in which the executor(s) distribute the assets according to the will left by the deceased. However, assets can be held in either “joint tenancy” or “tenancy in common”. The differences are subtle but generally “joint tenancy” allows the deceased partner's property to pass to the surviving partner by “right of survivorship” and does not become part of the deceased partner's estate. For assets other than land (such as vehicles, bank accounts, household goods), the law generally  presumes ownership in “joint tenancy” and there is no probate.This is an often complicated area of law and our recommendation is that you discuss your concerns with a lawyer.None of the above is intended or should be construed as legal advice. Richard Day

  11. After my mother-in-laws passing my father-in-law added his 1st born son as co-owner of his home and property. My husband is wondering why someone would do this? Does this effective the equal distribution of assets? There are only two siblings.

    1. Lucy, this is a potentially complex situation. Property transfers before death can be tax-exempt in BC (see this bulletin) if the property is also the principal residence of the recipient. Under BC's new wills law (described in the article above) \”Gifts to children during will-maker’s lifetime are no longer treated as advances out of the estate\” and that might also be a reason for the action. The easiest approach would be to ask the father-in-law. If family relationships do not make that possible, you could seek a legal opinion. We are publishers, not lawyers, and cannot provide more advice. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  12. What about a unsigned will that read and witnessed but the testator could not hold the pen to sign, his fingers where too swollen. A will prepared by a lawyer with contents and lawyer request by him to a hospital social worker and in front of witnesses earlier that day. The will was read to him later parts where reread to him and he tried to sign twice in front of two witnesses as required. He asked me to sign his name but I declined twice for fear of fraud. Would section 58(2) and section 190 and George v Daily (1997), 115 E.T.R (2d) 1 (Man.C.A) [par 13]. A justice gave me Indigent Status to bring a proceeding to prove a will in solemn form. He died September 21, 2011. still figuring out how to do a petition while I recover lost data from computer.

    1. Josh, this is beyond our scope to answer. We are publishers and you really need an answer from a lawyer. Our suggestion is to call your local legal services to see if they are able to provide some help. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  13. my husband has lived on his mothers land for 30 years ,and now the sister has put the mother in a care home , and said the land gets sold ,but the mother says the land gos to her son , is there a grandfather clause that the son can use to stay on the land

    1. Under the new law, if the mother is mentally competent and gifts the land to her son in her will, the land is no longer part of the estate upon her death. If that is not the case, the land is part of the estate and if there is no will and the mother's spouse predeceases her, then the estate is typically divided equally.The case of the land being occupied by an adult offspring complicates the distribution and if the mother has not prepared a will or is no longer mentally competent in law to do so, we suggest your husband seek legal advice. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  14. My father in law is a joint owner on our house, he has another home in Croatia which he is retired there. I stated last year before he left to get a will in Canada to do something with the house (which we own together) to either leave it to his son (my husband) or whomever. He did not do this as in the old country where he's from they don't need wills. I'm worried if he passes away that there will be issues because his name is on our house. Any advice?

  15. If your father in law dies without a will, his estate will need to go through a process called \”administration.\” An application is made to the court (by a family member or relative, for example) and then a series of defined steps need to be followed to identify assets and liabilities, and to determine how the estate should be distributed. If there are differing opinions among family/relatives, this can get messy; if everyone agrees and the procedure has been followed, the court will allow the distribution to take place.It is obviously easier if there is a will, but not impossible without one. The British Columbia Probate Kit explains how to proceed in both scenarios. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

    1. Yes, common-law is a \”marriage-like relationship\” so the first item in the changes above applies: \”Definition of “spouse” includes anyone in a marriage-like relationship for at least 2 years.\” Richard DayPublisherSelf-Counsel Press

  16. Under the changes which took place in the law earlier this year, Gifts to children during the will-maker’s lifetime are no longer treated as advances out of the estate. However, transfer taxes may be involved and you should at least consult an accountant in advance. Richard DayPublisherSelf-Counsel Press

  17. My mother died a few years ago. My father 75+ now has a common law relationship (2 yrs now).
    His debt free estate (real estate, cars, boats) is estimated at over 1 million in value and all in his name only and purchased prior to the start of the live in situation. My Mom and Dad's last Will grants the estate to me.
    I understand both he and the live in have pre-nups but when I asked to see his agreement I get excuses why he cannot show it to me.
    If my father dies:
    1. Would the live in spouse become the administrator of the estate and if so could she change his Will (to cut me out) or put the ownership of the assets in her name? i.e. re-register property titles for example.
    2. Can the live in spouse claim any of the real estate, boats that are registered in only my father's name and distributed to me by Will if he passes?
    3. What recommendations do you offer or things I could do to protect our interest in the estate under this situation and new changes to the relevant Acts?

    1. As indicated in the article, the definition of “spouse” in BC includes anyone in a marriage-like relationship for at least 2 years, so it sounds as if your father's partner meets the current definition of “spouse.” That means that the spousal rights described in the article will likely apply to her. He and she have a legal right to privacy, so there is no obligation to disclose the contents of any pre-nuptial agreements they may have made.Regarding your questions. 1. The administrator(s) of an estate are generally named in the will and disclosed after the death of the person writing the will. The administrator may not legally change the will. 2. Your father may elect to change his will, and has the legal right to do this, no matter what may have been stated verbally in the past. 3. There is no simple answer to this. You cannot force your father to give you something when his spouse has certain legal rights and it is entirely possible that he may have changed his will. Richard DayPublisherSelf-Counsel Press

    1. Each province may treat real estate slightly differently in an estate distribution, but the general principle is that any unpaid real estate taxes must be paid and the real estate is given a value at the date of death and may attract tax depending on how it is distributed. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

    1. If the executor of a will has possession of that will prior to the death of the person who wrote the will, the executor has no obligation to distribute the will or or make its contents known. The content of a will is private until either the author passes away, or the author chooses to personally divulge information about it. Richard DayPublisherSelf-Counsel Press

  18. Under current law, is a deceased RRIF and/or Insurance benefits part of the “Estate”? The Law now sets out a distribution to spouse & children where there is no Will, and I am wondering if the RRIF and Insurance benefits are included in that split or are they outside of that defined porportional distribution?

    1. Sue, that will depend on whether there were named beneficiaries for the RRIF or Insurance benefits. If there were no beneficiaries named, they will be assets of the estate.Richard Day PublisherSelf-Counsel Press

  19. I have your will kit but the DVD doesn't work. As I fill in the forms there is a line “But if my said executor should refuse to act, prececeases me, or die within a period of ______days following……. how many days should I fill in?? Also, #5 says “I give my Executor the following powers:” what would those powers entail??

    1. The disc is a CD, not a DVD. If it does not work, please call our customer service for help.Richard DayPublisher Self-Counsel Presshttp://www.self-counsel.com

  20. Re writing one's own will in BC, I understand it must have two adult witnesses who are not beneficiaries of the will – must it also be handwritten to be legal?

  21. my father was an artist (passed away recently) and married to my mother for 63 yrs (BC residents) He will announces that all of the artwork in the house belonged to him and therefore he has declared that it all go to my brother also who is the executor of the their estates. mother is still alive. Do these paintings and art all go to my brother now as my father has stated in the will? can he declare that they were 100% his?. there was only my brother and I – i was left nothing as my father didn't like my x-husband and declared he didn't want him to get anything. (via myself) what is my recourse – if any.
    thank you

    1. Maggie, you and/or your mother can challenge the will during the probate stage. Your mother might have a case on the grounds the artwork is part of the furnishings of the home (which she presumably lives in). You should consult a lawyer to learn if a challenge will have a good chance of succeeding. Richard DayPublisherSelf-Counsel Press

  22. No, wills do not have to be handwritten, they can be typed (and for clarity sake, probably should be). Only signatures need to be original and handwritten.Richard DayPublisher Self-Counsel Press

    1. If our will was written by a Lawer in Ontario some 20 years ago, likely the Lawer and one of his Typist ( Witness ) are dead by now. Whould this will still be good in British Columbia

      1. The problem would likely be if someone challenged the will. We expect it would prove costly to prove the signatures were valid.A potentially larger problem, however, is that it is very rare that people's circumstances do not change in more than two decades, or that a will written two decades ago adequately deals with your current assets. Also worth considering is the changes in wills law since you wrote your will. These changes do not happen often, but as you can see from the description above, they can impact individual decisions. This is particularly true for many people regarding the new treatment of gifts to children. Another issue to consider is, would your executor(s) need to travel to BC to probate the will?If you are comfortable with your will as you have it written, you could leave it alone and trust no one challenges the signatures, or you could write copies of the will and have your signatures witnessed (two adult witnesses should both be present when you sign and date the will, and they should then sign and date their signatures. The witnesses need to be competent adults (e.g. not suffering mental disabilities that might be challenged) and it is best if they are not beneficiaries of the will. The witnesses only need to witness your signing and do not need to know the content of the will. They do not need to be lawyers or notaries. Richard DayPublisherSelf-Counsel Press

  23. Is a final will required if there are no assets or liabilities? My senior citizen father in law is too ill to complete the final will but I am uncertain if one should even need to be completed if only personal possessions are he has. Thank you!

    1. If he is too ill to be able to complete a will, you have your answer. The issues after death will be, a final filing with the Canada Revenue Agency, and if there are no assets of value and no debts, then family members will need to make/agree on decisions about what is done with his personal possessions. Richard DayPublisherSelf-Counsel Press

  24. I was told this week that this act had not passed yet and is not in effect. We have a situation where my childrens father was common law for 10 years with his current wife
    and did a new will then married his common law spouse 3 months later and has now died. I am being told that because this new law has not passed yet he is considered to have died intestate.

    1. Yes, the new law has been delayed until Spring 2013, apparently to allow people to more fully understand it.Under the law still in force, marriage causes any prior will to be revoked, so if your children's father wrote a new will and then married his common law spouse, the will wold be considered revoked. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  25. We have a copy of my mother's signed and witnessed will . . . but it is a photo copy . . the lawyer who prepared the will has since passed away and we can't find the original copy. Will a photocopied version suffice?
    Craig

    1. This can get complicated as a photo copy is obviously not the same as an original document. The person(s) applying to probate the estate will need to ask the court if it will accept the photocopy in lieu of the missing original will.

      Richard Day
      Publisher
      Self-Counsel Press

  26. I am a snowbird, living part time in a tropical country. I need to have my will witnessed. I have two expatriate Canadian citizens (spouses) who live near me and could sign the will. Does the will have to be signed in Canada? Do I need to sign it at a consulate?

    1. As long as the will is signed and witnessed with all three of you in the room at the same time, you can do that anywhere in the world. Signing at a consulate is not necessary. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  27. Where two (or more) siblings are named as co-executors of their parent's will and issues arise which cannot be resolved between them, how is the issue to be resolved? I have been told that the eldest sibling would have the final decision-maiking authority.

  28. When my Grandmother passed away, her estate was left to her husband, who was not my grandfather. When he passed away, his entire estate, including my grandmother's assets, was left to his children. My father received nothing from his mother's estate.

    We have three children. To avoid having our estates possibly end up in the hands of non-relatives and to make some provision for our grandchildren, is it permissable to divide our estate first into three equal parts (one for each child) then to divide those 1/3 shares into equal portions to be shared equally amongst our child and their biological offspring? ie: our child with no offspring would receive 1/3 of our estate. Our child with 3 offspring would receive 1/4 of 1/3 of our estate, etc.

    1. Your solution could work, but has its own risks, the largest of which might be one of the children divorcing and no longer having custody of the offspring. Assuming the new Act is finally signed this Spring, you might want to take advantage of the \”Gifts to children during will-maker’s lifetime are no longer treated as advances out of the estate\” change and distribute some items early. Another approach for the grandchildren (existing and future) could be to establish some sort of financial trust, with the help of a good legal advisor. Richard DayPublisherSelf-Counsel Pres

  29. This kind of issue can often end up with a mediator brought in by the siblings (sometimes because of pressure from other family members). The alternative is to return to the probate court and declare they are unable to reach agreement. In either case, costs will be incurred. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

  30. What does an executor need to do when a person who is an heir of an estate has autism and is not able to manage their financial affairs.

    1. If the heir is unable to manage his or her affairs, and this is not addressed in the will, we think the executor should seek direction from the probate court. A person with autism may have someone or organization managing their affairs and monies from the estate could help improve the quality of life of the autistic person. Richard DayPublisherSelf-Counsel Press

      1. The will was done in Quebec and is notarial and already considered valid without probate. The heir is in BC so would I need to consult a lawyer in BC? The heir currently is less than age 19 so the parents are handling affairs now but no idea what will happen when the heir attains 19 in 2014.

        1. Wills are probated in the province in which the author of the will dies, with distribution going to named heirs wherever they reside. If the author of a will in Quebec departs that province to take up residence elsewhere, she or he should re-write the will in the province of residence (to simplify probate in the new province).In the case of a person who was a minor when the will was written and a competent legal adult at the time of inheritance, distribution would be directly to the heir without the involvement of his or her parents. Richard DayPublisherSelf-Counsel Press

  31. We have Alberta wills and now resident in BC. We own Alberta corporation with assets (property in Alberta) plus now personal property owned in BC. Is the Alberta will covering all our assets also good for the BC assets. We were told by local BC notary that a BC will has to be drawn up??

    1. Wills always undergo probate in the province where a person is resident at death. For that reason, it is good practice to ensure your will is written in the province in which you reside. It is also useful for the Executor(s) you nominate to be resident in the same province (lowering the cost of the probate task). There is no law that requires a BC will to be drawn up, however – your notary is wrong on this.Given what sounds like a more complex than usual estate, you may be best served by asking your principal bank if they have a lawyer in their trust department who can assist with drawing up a BC will (many banks have this service). Richard DayPublisherSelf-Counsel Press

  32. My father has recently asked that I amend his will for him – I'm a legal assistant but not giving legal advice, just copy typing and changing executors. Once the changes are made, he plans to have his landlords witness it. I learned something about codicles way back when. Does that matter in this case where the will is not drawn up by a lawyer/notarized? Or can I just make the changes and that's okay?

  33. A codicil can be used to change something in a will, but it is generally advisable to replace the will with a new copy incorporating and change(es). There is no requirement that a will be drawn up by a lawyer or notarized – so long as two competent adults who are not beneficiaries of the will witness the author signing the will (in other words, all three people in the room together to sign), and the person whose will it is (your father) is mentally competent (not suffering from, say, dementia), you can do the writing for him. Richard DayPublisherSelf-Counsel Press

  34. Is a Will ever out dated,? Mom died in Dec 2012, her spouse died Jan 13th does the 30 day Suvivor Clause come into affect? Her last will that we can find is dated 1990 but we all seen another will from 2004

    1. When a person's estate is probated, the most recent will (signed and properly witnessed) that can be found and presented to the probate court is the \”current\” will … the date it was written and signed is not a consideration, so a will can't be \”out dated\” because it was written long ago.Having \”seen a will from 2004\” is not the same as producing that will at the probate court; the court will rely on the will which is presented for probate (the 1990 one).Richard DayPublisherSelf-Counsel Press

  35. New law in BC means old wills are not void on new marriage. What if we married 8 years ago and there is an old will that leaves substantial parts of his estate to his kids? To further complicate, he has taken over control of my previous assets by adding his name to them (I was in hospital). I am in ill health. What can I do to ensure that my kids get the assets they sacrificed for over the years?

    1. People should _always_ write a new will when there is a significant change in their circumstances (such as marriage). This is not a legal requirement, but it is a sensible one.We are unclear about how your spouse took over control of your assets \”by adding his name to them\” as this would normally require a legal process and court agreement. If that is what happened, you should apply to have the order reversed. If you have a separate will from your spouse's will, you can include in your will the assets you own and you can bequeath them to the children. If the assets are jointly held, you will need to talk to a lawyer. Richard DayPublisher

  36. A relation died in British Columbia.My mother was told that she was a beneficiary.The death was 4 years ago and my mum hasn't heard from a solicitor.What do we do to find out if she left a will and to get a copy if she did leave a will.
    We live in Scotland.

    1. You will need to contact the probate court in the jurisdiction in BC where your mother died to request a copy of the will. This page can help you identify the court to contact. Richard DayPublisher

  37. My wife & I own a mobile home which is situated in a mobile home park in B.C. We do not own the land but pay rent. Do we have to be concerned about the specific rules for powers of attorney dealing with real estate ?

    1. A mobile home which has wheels and an engine (i.e. a motorhome) is considered a vehicle, as are ones which can be towed behind a vehicle. If the mobile home is static on a pad in the mobile home park, connected to utilities, and can only be moved by placing it on a trailer, it will likely be considered a \”manufactured home\” and is treated similarly to a strata property. Richard Day

    1. Assuming the will appointed an executor, the executor would normally apply to probate the will immediately after death. Probate is done at the court in the jurisdiction where the deceased lived. The time it takes to complete the probate process will depend on how complicated the estate is. Notifying beneficiaries is part of the probate process.If time has passed and you believe you are a beneficiary of the will but have heard nothing, you could try contacting the probate court in the area the deceased resided, to ask if probate has started. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

        1. Yes, one of the final steps for the \”executor\” doing a probate is to have a release signed by each beneficiary.

          Richard Day

  38. Hi, I just bought your kit and have several questions before I proceed. At the very beginning it says you should see a lawyer if you are in a same sex relationship and or if you are elderly. Well my husband and I were legally married in Feb. 2012 and have been living as spouses since 2009 in a same sex relationship. He is now 84 and although remarkably fit and together old by most accounts. I am 49. In May of 2012 I was added to the title and am registered owner in fee simple as joint tenants of our property and assume this means the survivor spouse automatically becomes full owner of the estate so it will never be part of the will unless one of us doesn't outlive the other by the # of days specified in the will. For the same reason we both co-own our vehicles and plan on holding all assets jointly so little or nothing is left in the will. Is this a good strategy to keep from having a lengthy probate. It is our desire to be the only beneficiaries in each others will and our desire to be each others power of attorney and executor . It is expected I will outlive him, we have no children, no former spouses, and he has no relatives closer than cousin [ie no siblings parents uncles ext.] who lives in the states. I will await your reply before I proceed with the kit.

    1. Yes, that sounds like a good and simple plan. The comment at the start of the book about seeing a lawyer if you are in a same sex relationship or are elderly still applies to Canadians living in most provinces, but with the new Family Law Act in BC treating same-sex relationships as fully equal to opposite-sex ones, it is not a problem any longer. If both partners are elderly and the estate arrangements in the will are complicated, seeing a lawyer is still a good idea.The joint ownership and other arrangements you describe should make probate very simple – mostly just closing the deceased's account with the Canadian Revenue Agency and assuring the probate court there no outstanding debts owed by the deceased. Richard Day

  39. My husband of 6 years refuses to do a will, he says its not necessary, all investments are going to the son and sister, which is okay I guess, considering it was his funds before he met me. However I am concerned about the mortgage and contents. I suspect his life insurance is going to his 3 adult kids. Will I have a place to live when he is gone?

  40. When a parent dies do the children have to be notified of there death? Asking because my children are estranged from me & have been for yrs as well are we legally obligated to leave our children our estate? I live in BC..

    1. The executor of a will should normally inform any children of the death of a parent. If the children are adult and neither living at home nor financially dependent on the parents, you do not have a legal obligation to leave them your estate. Richard Day

  41. On the issue of \”it was his funds before he met me\” – once you are married those funds become part of the estate for the purposes of probate (with or without a will). If your husband dies without a will, the rules described under Intestacy (Dying Without a Will) on this page will apply. The spouse gets a preferential share of the estate and after that is paid the residue of the estate is divided between the spouse and descendants. Also note the rule that the executor is not allowed to dispose of the spousal home for 180 days, to allow the surviving spouse time to decide whether to buy it. Richard Day

  42. My mother in law put her house in the name of her daughter about 10 years ago as a way to save taxes. It is mom's intention that the house be sold at her death and added to her investments and then split equally between the sister and 2 brothers. It appears to me that the house may now be subject to more taxes and that it is possibly a capital gains for the sister. Is that the case? Or is it capital gains for the entire estate.

    1. If the house was gifted to her daughter then (a) it is not treated as an advance out of the estate and (b) it would be the property of the daughter and thus not part of the mother in law's estate.If the house is treated as if it is still a part of the estate in the mother in law's will, then things are sufficiently complicated that our strong recommendation is to consult an estate lawyer. Richard Day

  43. Hi, I am completing the forms needed for probate from your Probate Kit and I have a question concerning the Requisition – General. In both the example in the book and the sample on the CD, there is a line that says “No party is under a legal disability”. However, on the working copies (word and PDF) that line is omitted. What does it mean and should I include it on the form I am completing? Thanks for your help.

    1. The example on page 62 of the book names two individuals (Maria and Jack Smith) who are aged 7 and 5 respectively, and then says \”… are under a legal disability, namely, they are minors.\”If beneficiaries of an estate are minors, they are \”under a legal disability\” in the sense that they can not apply to be administrators of the will because they are not yet adults. You can omit the line. Richard DayPublisherSelf-Counsel Presshttp://www.self-counsel.com

      1. Thanks Richard for replying. I actually hadn't looked at page 62 because that Chapter didn't apply to my situation and I had been working off of the example on page 45 – but your answer cleared things up.

  44. My mother and fathers registered wills left their estate to each other. My dad has passed away and because my mother was unable, she gave my sister and I enduring POA so I could do her executor duties. My mothers registered will leaves her estate to my sister and I. Over the past year it has become clear that she cannot handle her financial affairs yet is hostile towards us when we try to help. We have contacted her doctor and Vancouver coastal health who in their initial assessment found her to have dementia. My mother has threatened to exclude us from her will and is soliciting friends to have them take her to a lawyer. I believe that she iis trying to or may alreay in the last week or so change her will. Would a change to her will be accepted now? And is there any way we could find out if she changed it?

    1. Sorry to hear that this situation has arisen. It is always tough to deal with a person suffering from the onset of dementia.There is not a way to determine if a will has been changed, if the author of the will does not want you to know. Probably the best you can do is to document the events (dates/times) and ask to get a written assessment of your mother's mental state. If, after her passing, it transpires that the will was changed, it will be possible to challenge the new version on the grounds that she was not competent at the time it was written (and if she has seen a lawyer, the lawyer has a duty to evaluate her mental capacity, so if there are signs of dementia she may not be able to get the will re-written). Richard Day

  45. How does the new presumption of survivorship work in the case of spouses who leave everything to each other? I don't understand how the new law will work: spouse #1 will be deemed to have survived the other spouse and their half of everything will go to spouse #2 but spouse #2 will be deemed to have survived spouse #1 and their half will go to spouse #1! It seems circular.

    1. It is circular. The presumption is just a legal construct. So whatever each spouse leaves to the other in their wills is \”distributed\” to the other spouse's estate. Presuming each spouse made further distribution provisions in their wills, their estates are then distributed per the remainder of each will. Agreed it is a bit confusing, but the theoretical benefit is that it clears up confusion (and potentially expensive argument) about the issue of who survived whom. Richard Day

  46. My father passed away 2 months ago. His named excutor has nothing. Not filed for probate, nor paid his funeral….nothing. How long does she have to act?

  47. If the named executor has not acted after two months it would seem reasonable that family members could approach the probate court and apply to administer the estate, on the ground that the named executor has not acted. Or surviving members with a potential interest in the estate could simply notify the executor that they intend to take such action, and see if the executor responds. Richard Day

  48. I have 4 adult children 45 to 55 years old. Two of my children have been so helpful, taking me too and from hospitals as I have had a few surgeries. Also the two children have helped me maintain my residence. In my will do I have to leave 25% of my estate to each child or can I give the majority to the two who have helped me. My total estate would be around $125,000. Can I leave 5% to each of two and the remainder to the two who have helped me.

    1. As your children are all adults and not depending on you, there is no legal requirement about how much or how little you choose to leave each of them. You are free to leave more to one or two and less to the others, as you suggest. Richard Day

  49. i have the kit but have a quick question, if my mother of father die and the mortgage of the house is not completely paid, do i have to paid for it.

    1. How the lender will deal with the mortgage will depend on their policies. The key point to understand is that a mortgage document normally gives the lender first right to the asset (the house) and that right survives the death of the person or persons who received the mortgage.Obviously the lender will want to recover their investment, but assuming that the mortgage has been at least partially paid down, the lender will probably be willing to discuss transferring the mortgage to whomever inherits the house, provided that person can demonstrate an ability to then pay the mortgage fees. The alternative remedy would be to sell the house, and pay off the balance of the mortgage. Richard Day

  50. Do I have to have the Enduring Power of Attorney notorized by a Notory? or can the same person who witnessed the will sign the power of attorney too?

  51. My common law spouse and I are separated and in the separation agreement he agreed to keep me beneficiary and executor of his will even in the event of remarriage. Under the new Wills Act would this still be binding in the event of his death?

    1. As indicated in the article;Gifts to or appointment as executor of someone who at death of will-maker is no longer a spouse of the will-maker lapse because former spouse is deemed to have died before the will-maker Richard Day

        1. Under the Wills Act, a new will always cancels any previous will. However, if you have a legal separation agreement (not a clause in the will, but a standalone separation agreement), then it might (or might not) take precedence over his will. The only way for you to be sure is to consult a lawyer who specializes in wills and estates. Richard Day

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