Frequently Asked Questions About Wills and Estates

Boughton Law specializes in streamlined and effective estate planning and administration. Our Wills, Incapacity, Trusts, and Estates Practice Group is experienced with estate planning and transfer of wealth. Our team collaborates with individuals, families, and their businesses in ensuring their estate planning is executed with attention to detail. From drafting Wills to managing the complexities of estate administration, we are dedicated to providing peace of mind and assurance in your life’s pivotal moments.

Below are some of the most frequently asked questions:

Why is having a Will essential?

A Will is fundamental to ensuring your estate is distributed according to your wishes and allowing your assets to be dealt with more quickly after passing, which can prevent unnecessary stress and financial burden on your loved ones. The emphasis on having an up-to-date Will is highlighted by the provincial government’s “Make a Will Week” initiative. This program reflects the critical importance of this issue, strongly supported by our team at Boughton Law.

What are the steps involved in administering an estate?

Administering an estate encompasses a range of tasks, from applying for probate (or administration if there is no Will) and ensuring all tax filings are done, to distributing assets to beneficiaries. Even a simple estate can take two or more years to fully complete in BC.

The complexity of these tasks underscores the value of professional legal guidance. Our specialized estate team at Boughton Law is equipped to handle these processes smoothly, ensuring that you benefit from peace of mind knowing your estate matters are handled with care and without the stress of legal complexities.

How can I ensure my Will reflects my current wishes?

Regular updates to your Will are crucial, especially after significant life changes. BC’s estate legislation, the Wills, Estates and Succession Act, s which was crafted with the input our senior counsel, Wally Oppal, highlights the potential for Wills to be contested and modified posthumously (often referred to as “Wills variation”).

Consulting with our legal professionals can provide peace of mind that your Estate plan is likely to withstand  such claims.  Sometimes this will be through the use of Will, but may involve other tools like a trust.

Who can make a Will?

Anyone of legal age and sound mind can create a Will.

What if I’m named as an executor but unwilling to serve?

If you’re named as an executor but feel unable or unwilling to fulfill this role, it’s possible to “renounce” the role of executor. Our team at Boughton Law can guide you through this process, ensuring the estate is administered by a suitable and willing party.

Keep in mind that where you live and your tax residency can be important reasons to renounce this job.

How are probate fees determined in BC, and what distinguishes an executor from an administrator?

Probate fees in BC are calculated based on the total value of the estate at the date of death. The primary difference between an executor and an administrator lies in their appointment: an executor is designated in the Will, while an administrator is appointed by the court in the absence of a Will or Will where no executor is Willing or able to act (such as if all named executors renounce, are mentally incapable, or have died). Our lawyers can help clarify these roles and assist with the probate process.

What is a Grant of Probate or Grant of Administration?

The “Grant” is the document issued by the BC Supreme Court either:

a. recognizing the executor under the Will where there is a Will (a Grant of Probate), or

b. appointing an administrator where there is no Will (a Grant of Administration).

Most assets cannot be sold, consolidated, or generally accessed (such as most investments and money in bank accounts) until after a Grant is issued.

What should I do if I believe I’m a beneficiary of a Will or if the Will is being mismanaged?

If you suspect you’re a beneficiary or have concerns about how an estate is being administered, it’s important to seek legal advice. Our team at Boughton Law has the focused experience  to address your concerns, offering strategies to ensure your rights are protected and the estate is managed according to the law.

Who has the right to make funeral arrangements, and how can I address the deceased’s debts and possessions?

Typically, the executor, if there’s a Will, or next of kin, if there is no executor, has the authority to make funeral arrangements. Handling the deceased’s debts and possessions involves a careful process to ensure all liabilities are settled before distributing the remaining assets to beneficiaries. These responsibilities are the duty of the executor/administrator.

Boughton Law can provide the necessary guidance to navigate these responsibilities.

What are the rights of separated or common-law spouses in estate matters?

The rights of separated or common-law spouses can vary significantly and have implications for estate distribution. It is possible to cease to be spouses for BC estate law purposes even if still married, and it is possible to have rights to estate assets even if not married but if the deceased and the surviving individual were in a marriage-like relationship. Our legal team is skilled in interpreting and applying BC’s estate laws to ensure fair treatment and protection of rights for all parties involved.

What are the rights of children and spouses to a deceased person’s estate.

In BC, the Wills, Estates and Succession Act gives children and spouse of a deceased person the right to ask the Court to change the terms of the deceased person’s Will to give them more.  This wills variation right is restricted to these classes of people.   Notably, ‘children’ does not include stepchildren, but does include adult children.   

What is an enduring power of attorney aka PoA?

An enduring power of attorney is a legal document that allows someone to make financial and legal decisions on your behalf.  It is typically used to make these decisions if you become mentally incapacitated.

Why is it important to have an enduring power of attorney?

Without an enduring power of attorney, if you become incapacitated, your loved ones would need to obtain a court order to manage your affairs (called a “committeeship”), which can be costly and time-consuming.  The province becomes involved in obtaining any such court order.

What happens if the original enduring power of attorney document is lost?

The original document is crucial; if lost and you are incapacitated, it is typically the equivalent to not having a power of attorney.  In rare circumstances, it may be possible to have a copy validated by the court, which is not only complex and expensive, but also uncertain.

Can an enduring power of attorney include decisions about health care?

No, decisions about health care require a separate legal document, most commonly by way of a representation agreement, which specifically covers personal and health care decisions.

What strategies should be considered for cross-border estate planning?

When planning for cross-border estates, several strategies can minimize tax consequences and legal complexities. These include engaging in jurisdictional planning where you have tailored and specific documents for each jurisdiction where you have assets, and owning foreign assets through structures like corporations, partnerships, or trusts. The choice of strategy will depend on factors such as the value and location of your assets, tax rules in the relevant jurisdictions, your citizenship, residency, and the locations of potential beneficiaries. Effective estate planning should begin as soon as you acquire a foreign asset.

How long does it typically take to administer an estate?

Administering an estate does not have a fixed timeline. Executors must act responsibly and efficiently, but the process typically ranges from two to three years once all tax compliance is dealt with for the estate.  The more complex the estate, the longer it may take. The executor’s or administrator’s duties involve notifying beneficiaries, gathering and appraising assets, settling debts and taxes, and distributing assets.  If there is litigation, such as a wills variation claim, they are also responsible for navigating that on behalf of the estate.

In BC, unless certain consents or a court order is obtained, the executor/administrator is barred from distributing the estate to beneficiaries for 210 days after the BC Supreme Court issues a Grant of Probate or Grant of Administration.

For personalized advice and tailored legal assistance with your estate planning and estates matters, contact Boughton Law. Our dedicated professionals are here to ensure your estate planning and administration are handled with care, precision, and respect for your wishes.