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Planning for the future is essential to ensure your loved ones are cared for. In Surrey, British Columbia (BC), wills and estates lawyers provide a range of services to help individuals protect their assets and wishes. This guide covers the key aspects of estate planning for individuals in Surrey, including wills, probate, estate administration, powers of attorney, representation agreements, and estate disputes – all based on BC laws and practices.
We’ll also highlight why working with an experienced local law firm (such as Merchant Law Group, a recommended Surrey wills & estates firm) can give you peace of mind. The information is presented in a friendly, easy-to-read format with short sections, bullet points, and a detailed FAQ to address common questions. Let’s dive in!
Estate planning is the process of arranging your personal and financial affairs so that your wishes are honoured after you’re gone. It’s about more than just writing a will – it encompasses everything that happens to your assets and responsibilities if you pass away or become incapacitated. Key elements of estate planning include creating a will, setting up any necessary trusts, assigning powers of attorney, and making representation agreements for health care. In short, a comprehensive estate plan covers who will inherit your property, who will care for your minor children, who will make decisions for you if you can’t, and how to minimize delays or costs for your family.
By engaging in estate planning, you gain peace of mind knowing you’ve done everything possible to care for your loved ones and protect your legacy. Next, we’ll look at the cornerstone of any estate plan – the will.
A will (often called a Last Will and Testament) is a legal document that sets out how you want your assets distributed after your death. It can also name an executor (the person who will carry out your wishes and administer your estate) and appoint a guardian for any minor children. In BC, anyone 16 or older and mentally capable can make a will. Having a will is absolutely vital if you want control over who inherits from you and to prevent unnecessary difficulties for your family.
Key features of a valid will in BC:
If these formalities are followed, your will is valid under BC law. (Unlike some provinces, BC generally does not recognize unwitnessed holographic wills, so writing your wishes on paper without witnesses isn’t sufficient.) It’s best to have a lawyer draft and review your will to ensure it meets all requirements and uses clear language. A poorly worded or improperly executed will could be open to challenges or might not carry out your intent.
Why have a will? Dying without a will (called intestate) means you lose control over who gets what. BC law will decide how your estate is divided, which might not align with your wishes. We discuss intestacy next.
If you pass away without a valid will in place, you are said to have died “intestate.” In that case, British Columbia’s Wills, Estates and Succession Act (WESA) sets out how your estate will be distributed. The process can be more time-consuming and costly, and the outcome may not reflect what you would have wanted. Here’s a simplified breakdown of intestate succession in BC:
Additionally, any assets you owned jointly (for example, a joint bank account or joint tenancy in a property with a right of survivorship) would pass directly to the other joint owner and not form part of the estate. Also, beneficiaries named on life insurance or registered accounts (RRSPs, TFSAs, etc.) would receive those directly.
If this default distribution is acceptable to you, intestacy might not sound bad. But most people are not happy with what would happen. Intestacy could, for example, completely exclude stepchildren, common-law partners under 2 years, or close friends – none of whom would inherit anything under BC’s intestate scheme. It also leaves no room for charitable gifts or other personal wishes. Moreover, dying without a will typically causes delays and extra expenses: the court will need to appoint an administrator to manage your estate, and your loved ones might have to sort out paperwork and even legal applications during their time of grief.
In BC, the good news is there’s no “estate tax” or inheritance tax – your beneficiaries do not pay tax on what they inherit. (Your estate may owe any income taxes due, but no special death tax.). However, intestacy can still cost your estate more in legal fees or bonds for the administrator, and assets remain frozen until an administrator is appointed by the court.
Bottom line: If you’re not okay with the government’s formula deciding your heirs, you need a will. Even if you are okay with it, remember that a will allows you to name an executor you trust and make specific plans (for example, creating a trust for a child’s education). It’s usually far better to have a will in place. An experienced Surrey wills lawyer (like Merchant Law Group) can help you draft a will that reflects your unique family situation and wishes.
Once you have a will, don’t just forget about it. Review your will regularly – a common recommendation is every 3 to 5 years, or whenever you have a major life event (new child, marriage, divorce, significant change in assets, death of a beneficiary or executor, etc.) . BC’s laws allow wills to be changed by making a formal codicil (amendment) or by making a new will altogether (which usually revokes the old one). Keeping your will up to date is important so that it still reflects your current wishes and family circumstances. Also note that getting married no longer automatically revokes a will in BC (a change made by WESA in 2014), but if you had an old will from before marriage that made no provision for your new spouse, the spouse might challenge it – so updating is critical.
It’s also wise to store your will in a safe place (like a fireproof home safe or safety deposit box) and let your executor know how to access it. In BC, you can optionally register a Wills Notice with the Vital Statistics Agency – this is not the will itself, but a note in a provincial registry about where your will is stored, but it can help your family locate your last will quickly when needed. Many lawyers will file a Wills Notice for you when they prepare your will.
Lastly, consider that a will only takes effect upon death. To plan for situations where you might be alive but unable to manage your affairs (for example, due to illness or injury), you should also have documents like a Power of Attorney and Representation Agreement, which we will explain later in this guide. First, let’s look at what happens when a person with a will dies and the will needs to be put into effect (the probate process).
Probate is the legal process of validating a will and authorizing the executor to act. In BC, probate is handled by the BC Supreme Court (Probate Registry). When someone dies leaving a will, the executor named in the will typically must apply for a Grant of Probate – a court order that confirms the will is legally valid and that the executor has the authority to administer the estate. Only with this grant can the executor deal with many assets of the estate (for example, transferring or selling the deceased’s house, or accessing bank accounts).
Here are the key points about probate in BC:
For most people, the probate process is a one-time, unfamiliar event, and the paperwork and legal rules can be daunting. Professional guidance can be invaluable. A local wills & estates lawyer can prepare the probate application correctly and efficiently, ensuring all required steps are taken (like notifying beneficiaries and filing the right affidavits. This helps avoid rejections or delays. Lawyers can also navigate any wrinkles – for example, if an asset’s title is unclear, if there are minor beneficiaries (which adds extra requirements), or if part of the estate is outside BC. While you’re not legally obligated to use a lawyer for probate in BC, doing it alone can be overwhelming; many executors choose to hire a lawyer to make the process smoother.
In Surrey, Merchant Law Group offers probate services to guide executors through every step, from filing the initial application to the final distribution. With the Grant of Probate in hand, the executor can proceed to the next phase: estate administration.
Estate administration refers to the process of carrying out the terms of the will (or the intestacy law, if no will) and settling all affairs of the deceased. The person responsible is the executor (if named in a will) or a court-appointed administrator (if no will or no executor is available). This role comes with many responsibilities. We often think of the executor as the person who “reads the will and hands out the inheritance,” but there’s a lot more to it.
Typical duties of an executor/administrator include:
The whole process can be quite involved. As noted, it’s not uncommon for even simple estates to take 12-24 months to administer fully. Executors must act in the best interests of the beneficiaries and with a high standard of honesty and care (called a fiduciary duty). It’s a serious job, which is why you should think carefully about whom to appoint as executor when making your will.
Executor’s fees: In BC, an executor is entitled to claim a fee for their work, up to a maximum set by law. The BC Trustee Act allows a maximum of 5% of the gross estate value as executor compensation (plus potentially an annual care and management fee for long administrations). Often, the executor’s fee is negotiated or approved by the beneficiaries or the court. Some will-makers specify a fee or gift for the executor in the will. Executors can also choose to waive payment. Note that any fee taken is considered taxable income for the executor (whereas if they receive money as a beneficiary under the will, that is not taxed).
Being an executor can be complex and time-consuming. Executors can seek professional help. Indeed, estate lawyers in Surrey regularly assist executors with all or parts of the administration. A lawyer can handle the probate paperwork, provide guidance on legal requirements, help transfer assets, deal with taxes alongside accountants, and generally ensure the executor fulfills their duties properly. This can also help the executor avoid personal liability for mistakes. If at any point an executor feels unable to continue, they can renounce (step down) before taking any action, and an alternate or a court-appointed administrator will take over. Merchant Law Group in Surrey offers estate administration services, guiding executors or acting on their behalf in many tasks. This support can be invaluable, especially for first-time executors.
Estate planning isn’t just about what happens after death – it also plans for the possibility that you might be alive but unable to make decisions. This is where a Power of Attorney (PoA) comes in. A Power of Attorney is a legal document that allows you (the “adult” or “donor”) to appoint someone as your attorney (agent) to manage your financial and legal affairs on your behalf. In BC, you must be an adult (19 or older) and mentally capable of making a power of attorney.
Key points about Powers of Attorney in BC:
Including a Power of Attorney as part of your estate plan is highly recommended. Most lawyers in Surrey will suggest making an enduring PoA alongside your will. This way, your finances are protected in life just as your estate is arranged for after death. Merchant Law Group, for example, can prepare a solid PoA for you, ensuring it meets BC’s requirements and reflects any specific instructions you have. Always choose an attorney who is trustworthy and competent – they will have significant control over your assets under a PoA, so it should be someone who will act in your best interests.
While a Power of Attorney covers financial and legal matters, a Representation Agreement (RA) covers health care and personal care decisions. In British Columbia, a Representation Agreement is the legal tool that allows you to appoint someone as your representative to make decisions about your medical treatment, health care, living arrangements, and other personal matters if you become unable to make those decisions yourself. This document is crucial for incapacity planning, ensuring that the right person will have the authority to speak with doctors and make potentially critical health decisions on your behalf.
Important aspects of Representation Agreements in BC:
When creating a Representation Agreement, it’s wise to consult a lawyer, especially if you want to grant broad powers (enhanced RA) or have specific wishes. A lawyer can ensure the document is properly executed and aligns with your other planning (for example, ensuring your chosen representative for health decisions works in tandem with whoever you named in your Power of Attorney for finances). In Surrey, wills & estates lawyers (like those at Merchant Law Group) routinely prepare Representation Agreements as part of an estate planning package. This ensures that both your financial life and your personal/medical care will be in trusted hands if you ever cannot manage them yourself.
Even with careful planning, conflicts can sometimes arise after someone passes away. Estate disputes can take many forms – family members might disagree over the validity of the will, over how the executor is handling things, or over whether the will is fair. In Surrey and across BC, there are lawyers who specialize in estate litigation (disputes), and BC law provides some unique tools for challenging wills.
Challenging a will (Wills Variation): British Columbia is known for a law that allows certain people to challenge a will’s provisions if they feel they were not adequately provided for. Under section 60 of WESA, a spouse or child of the deceased can apply to the BC Supreme Court to vary (change) the will on the grounds that the will-maker did not make “adequate provision” for them. The court has the power to redistribute the estate to what it considers just and equitable. Only the deceased’s spouse (including common-law partner) and biological or adopted children can make this kind of claim. Stepchildren are not included in this category (unless legally adopted). This type of claim is often referred to as a will variation claim. It’s a major reason why completely disinheriting a spouse or child in BC can be problematic – they may contest the will for a bigger share.
When deciding a wills variation case, courts look at many factors: the size of the estate, the financial needs of the claimant, the intentions of the will-maker, the relationships involved, whether the claimant was supported by the deceased, disabilities, etc.. Essentially, the court tries to ascertain what a reasonable, judicious parent or spouse would have done in the circumstances. If someone challenges your will, the court could potentially award them a portion of your estate, even if your will had left them little or nothing. Working with a lawyer to document your reasons or arrange your assets (through trusts or gifts) might reduce this risk, but it cannot always prevent a claim. This is a complex area where legal advice is important.
Other grounds to dispute a will: Aside from asking the court to vary a will for fairness, a will can be challenged on technical or legal grounds. Some common reasons include:
Disputes can also occur in estate administration: for example, beneficiaries might accuse an executor of mismanagement or acting improperly, or siblings might fight over who should be the administrator of an intestate estate.
Resolving disputes: Many estate disputes are settled through negotiation or mediation once everyone “lawyers up,” but some do proceed to court. BC has specialized procedures for issuing a notice of dispute in probate if someone wants to halt the probate process, and strict time limits (for instance, a wills variation claim must be started within 180 days of probate being granted). If you believe you have grounds to challenge a will or there’s a problem with how an estate is being handled, talk to a wills & estates lawyer immediately. These cases are complex and emotional – a lawyer can assess the strength of the case and represent your interests.
For those planning their estate, it’s wise to discuss with your lawyer how to minimize the chances of a dispute. This might include communicating with your family about your plans to manage expectations, adding a letter to explain your decisions, choosing an executor who can handle family dynamics, and ensuring your estate plan is rock-solid legally (so there’s no technical reason to challenge it).
In Surrey, Merchant Law Group and other firms handle estate litigation – both for families defending a will and those challenging one. If a dispute arises, having legal experts on your side can help reach a fair resolution, whether through settlement or court proceedings.
A will is a single document that outlines who gets your assets and who will administer your estate after you die. An estate plan is more comprehensive – it may include a will plus other documents like powers of attorney, representation agreements, trusts, and strategies to handle taxes or probate. In short, your will is one important piece of the estate plan. The estate plan covers everything that happens to you and your property both in life (if you’re incapacitated) and at death. For example, an estate plan will address who makes medical decisions for you if you cannot, who gets your life insurance proceeds, and how to minimize probate fees, which a will alone may not cover. It’s best to have a holistic estate plan, and a wills & estates lawyer in BC can help craft one that fits your needs.
Having a will is essential because it gives you control over what happens to your estate when you pass away. With a will, you decide who inherits each of your assets (rather than the default law deciding) and you can name an executor you trust to carry out your instructions. You can also include wishes for funeral arrangements and appoint a guardian for minor children, which is very important for parents. A will greatly simplifies things for your family – assets can be distributed more quickly and smoothly, and there’s less room for confusion or conflict. Without a will, as we covered, the law in BC will distribute your estate in a set way that might not reflect your wishes, and it could cause delays or extra costs. In short, a will ensures your voice is heard after you’re gone, sparing your loved ones unnecessary stress and uncertainty.
If you die without a will in BC, you are “intestate”, and the Wills, Estates and Succession Act will determine how your estate is divided. Generally, your nearest family members inherit: for example, a spouse and children will get priority shares (spouse gets the first $300,000 or $150,000, depending on if the children are from that relationship, then the remainder is split). If you have no spouse or children, then it goes to parents, then siblings, etc., down the family line. Close friends, unmarried partners (under 2 years of cohabitation), stepchildren, or charities would not receive anything under intestacy. Also, someone (usually a family member) must apply to the court to be the administrator of your estate, which takes time. Minors’ inheritances are held in trust until they turn 19. Intestacy can lead to delays, and your assets might be tied up while the court process unfolds. Ultimately, not having a will means you have no say in who manages or benefits from your estate, so it’s highly recommended to make a will to avoid this situation.
In BC, anyone 16 or older who is mentally capable can make a will. The will must be in writing and must be signed by the will-maker in the presence of two witnesses at the same time, and then signed by those two witnesses. The witnesses should be 19 or older, and should not be people who are receiving anything under the will (beneficiaries) or the spouse of a beneficiary. These formal requirements are critical – if they aren’t met, the will could be declared invalid. You also need to have the mental capacity to understand what a will is and the effects of your decisions (this is usually only an issue if someone has cognitive impairment or is under undue influence). As of 2021, BC also recognizes electronic wills (wills signed electronically and stored as electronic records) and even wills signed remotely via video in certain cases, but specific rules apply. For most people, a traditional paper will, properly signed and witnessed, is the surest way. It’s best to have a lawyer prepare the will or at least get legal advice to ensure it’s done right. Remember, handwritten unwitnessed wills (holographic wills) are generally not valid in BC, unlike in some other provinces.
Legally in BC, you do not require a lawyer to draft a will – you can write your own will. However, while DIY will kits or online forms exist, it’s highly advisable to use a lawyer for most situations. A lawyer will ensure the will is properly executed and tailored to your circumstances. They can provide guidance on things you might not think of, like what happens if a beneficiary predeceases you, or how to structure a trust for a minor. Mistakes in wording or execution can render a will ineffective or lead to unintended outcomes. For example, if a layperson writes their own will, they might accidentally fail to dispose of all assets (resulting in a partial intestacy) or use unclear language that causes confusion or litigation. Given that a will only takes effect when you’re no longer around to clarify, it needs to be crystal clear and legally sound. Hiring a wills & estates lawyer (such as Merchant Law Group in Surrey) is worth the relatively modest cost for the peace of mind it provides. That said, if you have a very simple situation (e.g., a single beneficiary and few assets) and choose to do it yourself, be sure to follow BC’s signing requirements strictly and consider having a notary or lawyer review it.
The cost of making a will in British Columbia can vary widely depending on the complexity of your estate and the fee structure of the professional helping you. If you go to a lawyer, many offer will-drafting services either for a flat fee or at their hourly rate. Simple wills (for a person with a straightforward situation) might range on the lower end (e.g., a few hundred dollars). More complex estate plans (involving multiple documents like trusts, multiple wills, etc.) could be more, perhaps upwards of a thousand dollars or more. According to some averages, a basic will drafted by a lawyer might cost around $400-$600, while comprehensive estate planning packages (will, power of attorney, representation agreement) might be $1,000 to $2,500 or more. The Merchant Law Group notes that the average cost of a will and estate plan in BC ranges from $400 up to $3,000, depending on complexity. If you use a notary public for a simple will, their fees may be comparable. Using an online will service can be cheaper (often under $200), but those are generally DIY and you’re paying for a template and maybe a guided questionnaire, not personalized legal advice. Keep in mind that spending a bit on a well-drafted will now can save much more money (and stress) down the line by preventing mistakes or disputes. Always inquire about fees upfront – any reputable lawyer will be happy to provide an estimate based on your needs.
Probate is the court process of officially recognizing a will and authorizing an executor to act. When someone dies and leaves a will, the executor usually applies for Probate in the BC Supreme Court. The result is a Grant of Probate, a legal document confirming the will is valid and the executor has the right to deal with the estate. Probate is often needed because banks, Land Title Office, investment companies, and others will want proof that the person asking to access or transfer assets has proper authority. Without probate, for example, a bank won’t release a large bank account to the executor for distribution, because the bank could be liable if the will later turns out to be invalid or if a different executor was appointed. Probate effectively “unlocks” the estate assets for the executor to manage and eventually distribute. It also cuts off claims from those who might come forward with another will – once a will is probated, it’s considered the last valid will unless successfully challenged. In summary, probate provides legal certainty to the process of settling an estate. That said, if an estate is very small or everything was jointly owned or had named beneficiaries, probate might not be required. But in most cases where there’s real estate in the deceased’s name, significant investments, or multiple beneficiaries, probate is necessary to lawfully pass those assets on.
The timeline for probate in BC can vary, but generally, once the application is submitted, it often takes about 6 to 12 weeks (1.5 to 3 months) to obtain the Grant of Probate for a straightforward estate. This assumes all the paperwork is in order and there are no challenges or questions from the court. However, getting to the point of submitting the probate application can itself take some weeks, as the executor must gather information, value assets, and prepare court forms. If the court registry is busy or if the application has issues (like a missing document), it could take longer. In more complex estates – for example, if there are overseas assets, or if someone files a notice of dispute to contest the will – probate can take significantly longer, even a year or more to resolve. It’s also worth noting that beneficiaries typically don’t receive their inheritances immediately after probate is granted. The executor still needs time to collect assets, pay debts and taxes, etc., before final distribution. In BC, beneficiaries often see distributions anywhere from a few months to a year after death, depending on complexity. The entire estate administration process (including probate and winding up the estate) frequently takes a year or two for completion. Patience is important, but if you’re an executor, keeping beneficiaries informed can help manage expectations.
Probate fees in BC are set by the provincial government and are based on the value of the estate. The formula is straightforward: $0 on the first $25,000, $6 per $1,000 for the next $25,000 (i.e., $25k to $50k), and $14 per $1,000 for everything over $50,000. In percentage terms, that works out to about 1.4% of the estate’s gross value above $50,000. For example, if an estate is worth $100,000, the probate fee would be $0 for the first $25k, $150 for the next $25k (which is $6 * 25), and $14 * 50 for the amount above $50k (that’s $700). Total = $850. On a $1,000,000 estate, the fee would be roughly $13,450. These fees are paid out of the estate to the BC government when the probate application is filed. In addition, there’s a filing fee (around $200) for the application itself. Keep in mind, these are not income taxes or inheritance taxes (BC has none of those) – they are more like administrative taxes for using the courts to probate. Also, if an estate includes assets that are outside BC, those might not count towards BC’s probate fees if they require separate probate elsewhere. Note that hiring a lawyer to handle probate will incur legal fees as well, which are separate from the government probate fees.
An executor is the person named in a will who is responsible for administering the estate of the deceased. In other words, the executor carries out the instructions in the will and handles all the practical steps to settle the estate. Key duties of an executor include: locating the will, making funeral arrangements (often in consultation with family, and paying funeral expenses from the estate), applying for probate if needed, notifying beneficiaries and relevant institutions of the death, inventorying all assets and debts, safeguarding the assets (for example, making sure insurance continues on the house, maintaining property), paying off any debts and bills, filing tax returns for the deceased and the estate, and eventually distributing the remaining assets to the beneficiaries according to the will. The executor also has to keep records and might need to provide an accounting to the beneficiaries. Essentially, the executor “steps into the shoes” of the deceased in a legal sense to wind up the person’s affairs. It’s an important role that carries fiduciary responsibility – meaning the executor must act in the best interests of the estate and the beneficiaries, not themselves. Executors can hire professionals (lawyers, accountants) and pay them from the estate to help with tasks they’re not comfortable with. If you’re named as an executor and you feel you cannot do it, you can renounce (decline) as long as you haven’t already started acting in the role. Being an executor can be time-consuming, so it’s considered an honour but also a burden – that’s why people often choose a close family member or friend whom they trust, or even a professional executor or trust company for complicated estates.
Yes, an executor in BC is generally entitled to compensation for the work they do, up to a certain limit. If the will specifies a fee or gift for the executor, that will apply. If the will is silent, BC’s law (Trustee Act) allows a “fair and reasonable” fee of up to 5% of the gross value of the estate (including capital and income receipts). In addition, if managing the estate takes a long time, the executor can also charge up to about 0.4% per year of the average value of the estate as a “care and management” fee. In practice, many executors (especially if they are family members) either waive the fee or take something more in the range of 1-5% depending on the complexity of the estate. For example, if you handle an estate worth $500,000 and it’s moderately complex, a 3% fee would be $15,000 for the executor. Executor fees are subject to approval – the beneficiaries can agree on the fee, or if they don’t agree, the executor might have to have the accounts reviewed and approved by the court (a process called passing of accounts). It’s important to note that executor fees are taxable income for the executor, whereas an inheritance as a beneficiary is not taxed. Because of this, sometimes will-makers leave an executor an extra gift in the will (which isn’t taxed) instead of labelling it as a fee. But that has its own risks and should be structured carefully. In any case, yes, an executor can be compensated for their time and effort. If you’re writing a will, discuss with your lawyer what an appropriate executor fee or gift might be, and if you’re acting as an executor, keep track of your time and tasks if you intend to claim a fee.
An executor and an administrator fulfill similar roles – both are in charge of settling an estate – but the difference lies in how they are appointed. An executor is named in the deceased’s will. When that person dies, the executor will seek probate and then carry out the will’s instructions. An administrator, on the other hand, is appointed by the court when someone dies without a will (intestate), or if the named executors in a will can’t or won’t act. Essentially, if there is no valid will or no available executor, someone (usually next of kin) applies to the court to be the estate’s administrator. The court then issues a Grant of Administration (instead of Probate). The administrator’s job is similar – gather assets, pay debts, and distribute the estate – but since there’s no will, distribution is according to intestacy law. Also, an administrator may need to post a security bond (especially if they are out-of-province or if there are minors involved), which executors under a will typically don’t have to do because the will often waives that requirement. In summary, executor = named in a will by the deceased, administrator = appointed by the court when no executor is available. Both are legally known as a “personal representative” of the estate. One extra note: if there is a will but it doesn’t name an executor, or the named executor has died and there’s no alternate, then someone (usually a beneficiary) can apply to be administrator with will annexed (meaning they’ll administer according to the will). The roles are akin – the key difference is in how they got the authority to act.
A Grant of Probate (often just called “probate”) is the court’s official approval of a will and the authorization of the executor to proceed with estate administration. It’s essentially an order from the BC Supreme Court, issued under the court seal, that says “this is the deceased’s last valid will and [Name] is confirmed as the lawful executor.” An executor shows this document to banks, the land titles office, etc., as proof of their authority. A Grant of Administration is similar but issued when there is no will (or no executor), appointing an administrator to manage the estate. In both cases, the document might also be called a Representation Grant or Estate Grant. These grants are necessary in most cases to deal with the estate assets. Without a grant, the estate is in a bit of a legal limbo – no one has clear authority to sign on behalf of the deceased. Once a Grant of Probate or Administration is obtained, the personal representative can collect assets, pay debts, and ultimately distribute the estate. The process to get the grant involves submitting the will (if there is one), a detailed application, and sometimes supporting affidavits to the court. Think of the grant as the green light to move forward with settling the estate. In everyday terms, people often say, “We need to get probate,” which means to obtain the Grant of Probate.
No, British Columbia (and indeed all of Canada) does not have an inheritance tax or estate tax like some other countries do. In other words, when you die, your estate or your beneficiaries generally do not pay a special tax just for inheriting money or property. BC used to have an inheritance tax decades ago, but it was abolished in the 1980s. However, this doesn’t mean there are no tax consequences at all. When someone dies, there is usually a deemed disposition of their assets for income tax purposes. For example, if you have investments or a cottage that has gone up in value, it’s as if you sold it at death, and your estate might have to pay capital gains tax on the increase in value. Also, if you have RRSPs or RRIFs, those are often fully taxable as income in the year of death (unless rolling over to a spouse). The executor files a final income tax return and the estate pays any income taxes due out of estate funds. But these are just normal income taxes, not a tax on the inheritance itself. Once those taxes (and any probate fees) are paid, the beneficiaries receive their inheritance without any tax. They don’t count it as income, and Canada doesn’t impose any percentage cut. So if you inherit $50,000 from an estate, that’s yours with no tax payable on it (aside from any taxes the estate already settled before giving it to you). Always consider consulting a tax advisor as part of estate planning or administration, because while there’s no estate tax, careful planning can reduce the income taxes triggered at death (for example, by naming a spouse as beneficiary on registered accounts, or using the principal residence exemption, etc.).
A Power of Attorney (PoA) is a legal document in which you appoint someone to act on your behalf for financial and legal matters. You might need one to ensure that if you’re ever unable to manage your own affairs – say you’re travelling, ill, or incapacitated – someone you trust can step in and handle things for you. There are different types of PoA: a general Power of Attorney gives broad powers but ends if you become mentally incapable, whereas an Enduring Power of Attorney continues to be valid even if you can’t make decisions (this is the type most people want for incapacity planning). With an enduring PoA, your attorney (often a spouse, adult child, or close friend) could pay your bills, manage your bank accounts, renew your mortgage, or even sell your house if needed. Without a PoA, if you lose capacity, your family would have to apply to court for committeeship to get those powers, which is expensive and slow. Think of a PoA as insurance for your financial well-being during your lifetime. It only applies while you’re alive – the moment you die, the PoA is no longer effective (and your will and executor take over from there). Most seniors and indeed any adult who wants to be prepared should have a Power of Attorney in place, especially an enduring one, as part of their estate planning. It provides peace of mind that your bills will be paid and finances managed if you can’t do it yourself. It’s important to pick someone very trustworthy, because a PoA can be misused. In BC, you can also set conditions or restrictions in the PoA if you want to limit what your attorney can do or when the power kicks in.
No, a standard Power of Attorney in BC does not cover health care or personal decisions – it is only for financial and legal matters. To authorize someone to make health or personal care decisions on your behalf, you need a Representation Agreement (for personal/health matters) or an Advance Directive (for specific health instructions). There is often confusion about this: people might think their “power of attorney” can tell doctors what to do if they’re in a coma, but that’s not the case under BC law. The person you name in a Power of Attorney (your attorney) can, for example, pay your care facility fees and manage your property, but cannot consent to surgery or decide on medical treatment for you. For health decisions, you would name a representative in a Representation Agreement. Some other provinces use terminology like “Personal Directive” or “Medical Power of Attorney,” but in BC, the documents are separate. It’s wise to have both an Enduring Power of Attorney and a Representation Agreement so that all aspects of your life are covered. One handles the money, the other handles health and personal care. You can choose the same person for both roles or different people, as you prefer. Just remember to discuss your wishes with them so they know how to act if the time comes.
A Representation Agreement is a legal document unique to BC (other provinces have equivalents by different names) that allows you to appoint someone as your representative for health care and personal care decisions if you become unable to make those decisions yourself. In a representation agreement, you can give your representative authority to make a broad range of decisions, from where you live (e.g., moving you to a care home) to what medical treatments you receive or don’t receive. There are two levels: a standard Representation Agreement (Section 7) which can cover minor and major health care and personal care, and routine financial affairs, and an enhanced Representation Agreement (Section 9) which can cover refusing life-support and other significant health care decisions . The enhanced one requires you to fully understand what you’re doing when you sign it (basically, be mentally capable), whereas a standard one can be made even if someone has diminished capacity, to allow some support in decision-making. Most capable adults will do the enhanced version to cover all bases. In your RA, you can also include instructions or guidance for your representative, similar to an advance directive or living will, expressing your values or wishes (for example, some people state they don’t want heroic measures to prolong life in certain conditions). Representation agreements are important because, without one (or an advance directive), health care providers will defer to a default list of decision-makers (your spouse, then child, etc.), and that person might not know your wishes or there might be disagreement among family. Also, certain decisions like discontinuing life support or intrusive treatments can be easier if a trusted representative is clearly authorized to act. To make an RA, you must be 19 or older and sign the document in front of witnesses (or a notary/lawyer) with your representative also signing acceptance. It’s recommended to get legal advice when making one, to ensure it’s properly drafted and executed.
A Representation Agreement (RA) appoints a person (your representative) to make health and personal care decisions for you if you cannot, whereas an Advance Directive (AD) is a written document where you record specific health care instructions directly. Think of an advance directive as like a letter to doctors saying, “If I am ever in situation X, I do want treatment Y or I refuse treatment Z.” Commonly, people use ADs to refuse certain interventions (e.g., no CPR, no feeding tube if in permanent vegetative state, etc.). If you have a valid advance directive that clearly applies to your medical situation, health care providers are obligated to follow it as if you had given the instruction at the time. A representation agreement, on the other hand, doesn’t list all decisions, but empowers someone to decide things in real time on your behalf. You can have both: many people do an RA and also an AD to give their representative and doctors clear guidance. In BC, if you have both and they conflict, generally your own advance directive would take priority for the instructions it covers, and your representative would only decide on things not addressed in the AD. If you have strong wishes about end-of-life care, you might do an AD to state those, and still have an RA for flexibility in unforeseen situations.
If you do only one of the two: an AD alone means you’ve given specific instructions, but you haven’t appointed a decision-maker for anything you didn’t cover, then the health system falls back to a temporary substitute decision-maker list for other decisions. An RA alone means you’ve appointed someone but haven’t given written instructions – you trust them to make the call. Many lawyers include a basic advance directive (sometimes called a living will statement) within the representation agreement or as a supporting document. It’s all part of personal planning.
Absolutely, yes. You can name the same individual (or more than one) to take on all these roles, or you can choose different people – it’s entirely up to you. There can be advantages to naming the same person because they’ll have continuity from handling your finances during your life (if you become incapacitated) to handling your estate after death. For example, your spouse or your adult child might already be your attorney under a Power of Attorney and your representative under a Representation Agreement; it’s very common to also name that person as the executor in your will since they’ll be familiar with your affairs. However, consider the person’s ability and willingness to handle the workload and responsibility. Some people divide duties: maybe one child is good with finances, so they’re the attorney/executor, while another is a nurse so they’re the health care representative. That’s fine too. Just ensure the people you pick can collaborate if they need to. Also, remember that Power of Attorney and Representation Agreement are only effective while you’re alive, and the executor only takes over when you’ve passed away, so there’s no overlapping authority to worry about (the roles don’t conflict because they’re in effect at different times). It’s wise to talk to the person(s) you plan to name to make sure they’re willing to serve. No one is forced to take on these roles – executors can renounce, and attorneys/representatives can resign, so getting agreement in advance is key. And always name alternates in case your first choice can’t act when the time comes.
You should update your will and estate plan whenever there’s a significant change in your life or intentions, and also periodically, even if nothing major has changed, just to keep it current. Common triggers for an update include: marriage or divorce (though marriage doesn’t cancel a will in BC, your new spouse or the departure of a spouse could mean you want different provisions), start of a common-law relationship or end of one, birth of children or grandchildren whom you want to include, death of a beneficiary or executor named in your will, significant changes in your assets (e.g., you bought property or started a business, or conversely, you sold major assets), or if you move to a different province or country (different laws might apply). Also, if laws change (for instance, a tax law or estate law that could affect your plan), an update might be wise. A good rule of thumb is to review your will every 3-5 years anyway, even if just to read it and say, “Is everything still what I want?” Estate plans are not “set and forget” because your family, assets, and even relationships can evolve. Minor updates can sometimes be done with a codicil (an amendment), but major changes usually mean drafting a new will. Don’t write on your will or cross things out as a way to update – that can invalidate it. Similarly, keep beneficiary designations (on life insurance, RRSPs, etc.) updated; they are part of your estate plan too. For Powers of Attorney or Representation Agreements, update those if, for example, the person you named has moved away or your relationship changed, or if their health now makes them unable to act when needed. Keeping your documents up to date ensures that when they’re needed, they reflect your current wishes and are aligned with your situation. Many lawyers will notify clients about law changes or do periodic check-ins, but it’s ultimately up to you to reach out and update.
Yes, you retain the power to change or revoke these documents as long as you are mentally capable. For your will: you can either make a new will (which typically includes a clause revoking all previous wills) or add a codicil (an amendment) to modify parts of it. Tearing up a will can also revoke it, but that’s not advisable unless you really intend to destroy it and have a new plan – and never write on your will, as notes or scratches can cause legal questions. It’s best to see a lawyer to properly change your will. Remember that big life changes (marriage, etc.) might affect your will, so sometimes changes are automatic (e.g., if you divorce, any gift to your former spouse is typically revoked by law in BC).
For a Power of Attorney: you can revoke it at any time with a written Notice of Revocation, which you should give to the attorney and any institutions that have the PoA on file. Make sure to collect and destroy the original PoA documents so they can’t be used.
For a Representation Agreement: similarly, you can sign a revocation document or make a new one that states the old one is revoked. All these documents (will, PoA, RA) are under your control while you’re alive and competent. Once you lose capacity, you can’t change them (which is why planning ahead is so important). And of course, once you die, the will becomes irrevocable (you can’t change your will after death, obviously, and the PoA/RA cease at death). One more thing: if you make a new will, ensure any copies of the old one are marked as revoked or destroyed, so there’s no confusion about which is the latest will. And if you revoke a PoA, definitely inform banks or others that might rely on it that it’s revoked. A lawyer can assist with all these steps to ensure the changes are legally effective.
In BC (and generally in Canada), joint wills (one document for two people) are not common and not recommended. Each person should have their own will, because each person’s estate is separate. What couples often do is make mirror wills – meaning the wills are separate but almost identical in content (for example, each leaves everything to the other, and if the other is predeceased, then to the kids). That’s perfectly fine. You just need to be aware that mirror wills are not legally binding on the survivor – either spouse can change their will after the first one dies. Some couples want a binding arrangement (especially in second marriages with separate children, etc.) and might consider a contract or mutual will agreement that says neither will change their will after one dies. Those are called mutual wills, and they are a more complex area – they basically restrict the survivor from changing the plan. If that’s a concern (e.g., wanting to ensure assets ultimately go to certain children, not a new partner, after one’s death), you should talk to a lawyer about alternate approaches like trusts or agreements. But for the average couple, simple mirror wills are fine and common. For example: Husband’s will – “I leave everything to my wife, and if she’s gone, to our children equally”; Wife’s will – “I leave everything to my husband, and if he’s gone, to our children equally.” This covers most bases. Just remember to update if both of you pass your estate to the same beneficiaries, because if one spouse changes their will later, there’s no automatic notice to the other. Also, note that a will only controls assets in your name. Joint assets with right of survivorship go directly to the joint survivor, regardless of the will, and designated beneficiaries on accounts or life insurance go directly to those beneficiaries. So, joint or mirror wills should be part of an overall strategy, considering those non-estate assets as well.
In BC, a common-law spouse (referred to as a spouse in BC law if you have lived together in a marriage-like relationship for at least 2 years, or are in a registered domestic partnership) generally has similar rights to a married spouse when it comes to estate matters. This is a bit different from some other places – BC recognizes common-law partners for intestacy and wills variation. So, if you die without a will, your common-law spouse of 2+ years is considered a spouse and will inherit under intestacy (just like a married spouse would). If you have a will and you leave them little or nothing, they have the same right to challenge the will for a better share as a married spouse would. However, note the 2+ years requirement – a partner of, say, 1 year is not a spouse under WESA. Also, if you were separated (intending to live apart permanently, even if not formally divorced) at the time of death, then that person may no longer be considered a spouse for estate purposes Separation can cut off spousal rights if clearly established. So it’s possible, for example, to be legally married but separated for a year – in that case, the surviving spouse might not be entitled under intestacy or allowed to vary the will, because WESA says a spouse does not include someone who was “separated” from the deceased at death (specific criteria apply). It can get complicated to determine spouse status if there’s an on-and-off relationship.
In summary: a common-law spouse in BC who meets the time threshold is treated essentially the same as a married spouse for estate inheritance and will-contest purposes. They do not, however, automatically have rights like dower or something – it’s through either the will, intestacy law, or wills variation. For that reason, it’s always best to make your wishes clear in a will. If you want to provide for your common-law partner, do so explicitly in a will (especially if under 2 years together, since intestacy wouldn’t recognize them). If you do not want to provide for a long-term common-law partner, be aware that they can make a claim, and you should seek legal advice on how to structure things or your reasons (but the court can still override a will to provide for them).
You can attempt to disinherit anyone in your will since, as a will-maker, you have the freedom to distribute your estate, but in BC, disinheriting a spouse or child can be legally challenging. BC’s wills variation law allows a spouse or biological/adopted child to ask the court to vary (change) the will if it doesn’t make adequate provision for them. The court balances the will-maker’s wishes against what would be a “reasonable” legacy for the spouse/child. So, if you completely cut out a spouse or child without very good reason, there’s a high chance the court might award them a share if they contest it. The law in BC basically expects you to fulfill your moral and legal obligations to your spouse and children through your will. There are cases where disinheriting can hold – for example, if you have an adult child with whom you had no relationship for decades and you have a written statement explaining the estrangement, the court might accept that as a valid reason. Or if you provided significantly for a child during life and balanced things differently in the will. For spouses, it’s hard to completely disinherit a long-time spouse; even if separated but not legally ended the relationship, things can be messy. You cannot disinherit a minor child from necessary support because their guardian could claim support from the estate as well. So, while technically you can write a will leaving nothing to a certain child or spouse, expect a court challenge and likely a redistribution if that person pursues it. If you truly want to leave a spouse or child nothing (or a nominal amount), get detailed legal advice. You might consider life insurance or other outside-of-estate transfers to satisfy what might be their claim. Also, stepchildren (not adopted) you can disinherit with no WESA recourse (they can’t vary a will because they aren’t included in the definition of children for that), but if you’ve treated them as your own, you might feel a moral obligation anyway. In summary: Yes, you can legally state those terms in your will, but in BC the disinherited spouse/kids have the right to challenge and potentially override your wishes via the courts. Each case turns on its facts and the estate’s size, the claimant’s circumstances, and the reasons for disinheritance.
If you believe a will is not valid – for instance, the person lacked capacity, or it wasn’t executed properly, or they were unduly influenced – you should seek legal advice promptly. You may have grounds to contest the will. In BC, the process would typically involve filing a Notice of Dispute at the Probate Registry (if probate hasn’t been granted yet) to put the brakes on the probate process. Then, you might need to bring a court application or action to challenge the will’s validity. Grounds to challenge include: the deceased didn’t have mental capacity to understand the will at the time (e.g., advanced dementia); the will was signed under undue influence (someone pressured or coerced them); fraud (maybe a page was swapped, or the signature was forged); or that the will doesn’t meet the formal execution requirements (though note: WESA gives the court power to cure some deficiencies, so even a technical flaw might be overcome unless it’s a holographic will, which BC doesn’t accept generally). If the court finds the will invalid, it might revive a previous will or, if none, the estate goes intestate. Undue influence can be hard to prove – often it’s suspected if an elderly person radically changed their will in favor of a caregiver or one child to the exclusion of others. Suspicious circumstances can shift burden of proof onto the will proponent to show it was voluntary. You typically need evidence (medical records, witnesses, patterns of isolation, etc.). Because time limits and legal intricacies exist, contacting an estate litigation lawyer quickly is key. If you’re a beneficiary or potential heir who was surprised by a will that seems fishy, you have standing to challenge it. If probate has already been granted and you discover issues, you still can challenge, but it’s better to intervene early. The process can be costly and is essentially a court case – sometimes it settles out of court. Keep in mind a different scenario: if the will is valid but just “unfair,” that’s where wills variation comes in (for spouse/child). But if it’s truly not the person’s will (due to incapacity or undue influence), that’s a validity challenge as described. In any case, acting promptly and gathering any supporting facts are important steps.
To minimize the chances of your will being challenged or a successful challenge, consider these steps while planning:
In the end, you cannot make a will 100% challenge-proof in BC, because spouses and children will always have the option to claim for a better share. But by being fair (or having clear reasons if not) and using proper legal guidance, you can reduce the risk of a successful challenge. And remember, you won’t be around to explain, so whatever explanation or evidence you’d want a court to know, you have to put it on record beforehand.
If you hire a lawyer in BC to assist with probate or administering an estate, they can handle as much or as little as you need. For probate, a lawyer will typically: gather necessary information about assets, draft and file all the court documents for the probate application (including the affidavit of assets/liabilities, notices to beneficiaries, etc.), deal with any issues the probate registry raises, and obtain the Grant of Probate. This service alone can be a relief to executors who are unfamiliar with the legal forms and requirements. Once probate is obtained, for estate administration, the lawyer can help the executor in various tasks: preparing advertisements for creditors, advising on selling or transferring assets (and preparing deeds or transmissions for land titles, for example), ensuring debts and taxes are properly handled (often coordinating with an accountant for tax returns), preparing releases for beneficiaries to sign upon distribution, and drafting a final accounting or receipts. If there are any legal disputes or claims (like a family member not happy with their share or a claim from a creditor), the lawyer will advise on how to handle those or represent the estate in legal proceedings if necessary. Essentially, the lawyer acts as a guide and problem-solver through the entire process. For instance, if a beneficiary can’t be located, the lawyer can assist with steps to find them or get court direction. If any assets are in other provinces, the lawyer can coordinate secondary probate there through affiliates. Also, if the will has ambiguous terms, the lawyer can help interpret them or seek a court interpretation. Using a lawyer can also shield the executor – by getting proper advice, the executor is less likely to make a mistake that could result in personal liability. Many firms, like Merchant Law Group in Surrey, have dedicated estate administration lawyers or paralegals who handle the procedural heavy-lifting, allowing the executor to focus on family matters and decision-making rather than paperwork. The cost for this is usually paid out of the estate, not by the executor personally, and fees may be hourly or sometimes a percentage. It’s usually money well spent if the executor is at all unsure about the process.
No, you are not required to register your will with the government for it to be valid. In BC, a will’s validity comes from meeting the legal signing and witnessing requirements, not from any registration. However, BC has an optional Wills Registry (run by the Vital Statistics Agency) where you can file a Wills Notice. This notice simply records the existence of your will and where it is located (for example, “Will dated Jan 1, 2025, stored at ABC Law Firm in Surrey”). The content of your will is not filed, just the information about its whereabouts. The Wills Registry can be searched after death by your executor to see if a notice was filed, which helps ensure they find the correct, latest will. The fee to file a wills notice is small (about $17). Many lawyers automatically file this notice when they draft a will for a client. If you update your will later, a new notice can be filed. The Wills Registry is a useful tool to prevent situations where a will is lost or unknown. But it’s not mandatory – plenty of wills are not registered. If you don’t register, just be sure your executor knows where the original will is kept (since an original is needed for probate). After a death, a search of the registry is commonly done by lawyers handling the estate to make sure there isn’t a more recent will notice on file.
In summary: not required, but consider registering the will’s location for safety. And regardless, keep your will in a secure place and inform your executor or family of how to access it when needed.
You should store your original will (and other important estate planning documents like power of attorney and representation agreement) in a safe, secure location where it can be found when needed. Common choices include: a fireproof home safe or lockbox, a safety deposit box at a bank, or your lawyer’s vault (many law firms will hold clients’ original wills for safekeeping at no or little charge). If you keep it in a safety deposit box, ensure your executor either has access or can gain access; in BC, banks will allow a safety deposit box to be opened to search for a will and life insurance after death, but there are formalities. Wherever you keep it, it’s crucial that your executor and perhaps one other trusted person know the location (and any access details like a key or combination). Do not hide it so well that no one can find it. Also, do not remove staples or attachments from your will – if the will was stapled and staples are removed (for photocopying, etc.), it can raise questions at probate about whether pages were altered. Keep it intact. It’s wise to keep other documents together with the will, such as a list of your assets/accounts (to help your executor), funeral wishes, or insurance policies. Some people give a copy of the will to their executor or discuss the contents in advance, which can be helpful. Just remember the original signed will is what the court needs. For Powers of Attorney and Representation Agreements (which are used during your life if needed), you should keep the originals handy (not locked away in a bank where nobody can get them when needed). Often, people keep those at home or give the original PoA to the named attorney for use.
Another tip: tell your family if you have made a will. If they believe you didn’t and you actually did, they might distribute assets or make court applications, not knowing a will exists. A will’s notice registry filing can prevent that scenario as well. In summary, choose a secure but accessible spot for your estate documents and ensure your key people are aware.
Most estate planning principles are similar across provinces, but for BC (and thus Surrey residents), here are a few BC-specific points to note:
Be cautious though: don’t add joint owners or designate beneficiaries without advice, as it can have other consequences. But it’s a consideration for BC residents, perhaps more than in provinces with flat, low probate costs.
In summary, the core steps (will, PoA, RA, etc.) are crucial for anyone in Surrey/BC. The nuances above are things a local BC wills & estates lawyer would know to discuss based on your circumstances. Surrey being in BC means you benefit from BC’s modern legislation (WESA) but also must plan within its framework.
How Long Does Probate Take in British Columbia? Losing a loved one is hard enough without the stress of legal paperwork. If you’re dealing with a will in British Columbia, you may be wondering how long probate takes in BC. The answer isn’t one-size-fits-all. Probate timelines can range from a
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