Wills and Estates FAQ
Frequently Asked Questions Regarding Wills
This article provides information only, not legal advice. If you have a legal problem or need legal advice, contact us at info@logoslaw.ca.
Are hand-written wills valid in B.C.?
Yes, if they are signed by the testator and two witnesses in compliance with the Wills Act.
Are pre-printed will forms valid?
Yes, if the directions are followed precisely and if the directions comply with the Wills Act.
Do all wills have to be witnessed?
Any will made in British Columbia must be signed by the testator and two witnesses with the exception of personnel in the military forces or someone who is a mariner. Two witnesses must see the testator sign, and the testator must then see those two witnesses sign.
What about wills made outside B.C.?
If you are not sure whether a will made outside this province is valid here, contact a lawyer familiar with British Columbia probate laws.
Does every will have to name an executor?
No, but it is recommended. If an executor is not named, someone may have to apply to the court as administrator to handle all probate issues.
Can the executor witness the will?
Yes, provided he or she is not also a beneficiary, or married to a beneficiary.
What happens if a beneficiary witnesses the will?
The will is still valid, but the gift left in the will for the beneficiary (or the beneficiary’s spouse) is considered invalid.
Can a will be changed?
No, but you may make a separate document, called a codicil, which must be signed and witnessed like the original will. Do not erase, cross out or otherwise alter the original will. If you want to make major changes, it may be best to make an entirely new will.
What happens to my will if I get married or divorced?
Your will is automatically revoked when you get married, unless it states that it is being made in contemplation of marriage. If your leave something in your will to your spouse or appoint your spouse as executor, and are subsequently divorced, the will stands; however, the gift or appointment to your spouse will lapse and the will will be read as if the spouse predeceased the testator.
What if I want to contest a will?
If you are considering such an application, consult a lawyer promptly as the application may be time sensitive.
Frequently Asked Questions Regarding Probate and Administration
Do all wills and estates have to be probated or administered?
No, estates may be carried out without a Grant of Probate when all assets (for example, real estate and bank accounts) are jointly held with another person. RRSPs, pensions and insurance policies with a named beneficiary do not form part of the estate and will usually transfer directly to the survivor or named beneficiary. The need for probate is determined by the policy of the agency or financial institution which holds the asset.
When do estates need Letters of Administration?
A person may apply to be named an administrator when the deceased has died intestate (without leaving a valid will), or, if there is a valid will, when:
- the testator did not name an executor,
- the executor has died since the will was made and no alternate executor was named,
- the executor has renounced the right to apply to the court for probate, or
- the executor resides outside B.C. and appoints someone to apply in his or her place.
Letters of Administration, or Letters of Administration with Will Annexed, may then be issued by the court, appointing that person to act as administrator.
If I am named as an executor, but do not wish to be one, may I appoint someone else to apply for probate in my place?
No, unless the will specifically states that you may.
If you have any doubts about taking on the duties and responsibilities of an executor, you should consider renouncing your right to apply to the court for probate before you assume control of the estate. Only then can the alternate executor, if one is appropriately named in the will, or an administrator begin to act in your place.
Why would the Public Guardian and Trustee become involved with an estate?
The Public Guardian and Trustee becomes involved in estates when there is a minor or mentally disordered beneficiary or heir-at-law.
The Office of the Public Guardian and Trustee is required to review the process in order to ensure that the rights of those people are protected.
Why is an administrator sometimes required to post a bond?
An administrator may be required to post a bond when a beneficiary is a minor or a mentally disordered person. A bond may also be required where an estate's unpaid creditors or persons with a prior or equal right to the grant refuse to consent to the application without a bond.
Frequently Asked Questions Regarding Estates
If there is no will, or the will is deemed invalid under B.C. law, who shares in the estate?
The Estate Administration Act sets out details regarding the distribution of an estate under these circumstances.
Generally, the spouse and surviving children, natural and adopted, share the estate. In the absence of a spouse or children, the estate goes to the grandchildren. In the absence of spouse, children and grandchildren, the estate goes to the parents, or, in the absence of parents, to the next nearest relatives. An estate goes to the government only if no relatives are known or they cannot be found, and if all time limits set by the law have passed.
There are special provisions in the Act to govern the rights of separated and common-law spouses.
What are the duties of an executor or administrator?
While the responsibilities of an executor or administrator may vary as needed, the basic duties include:
- completing an inventory and a valuation of all assets and debts;
- gathering names and addresses of all beneficiaries and next-of-kin;
- cancelling subscriptions and charge cards, redirecting mail and winding up all other personal matters;
- taking control of all assets, including the transfer of ownership registrations and the collection of any debts owed to the estate;
- paying all valid or proven debts left to the estate (the executor or administrator may be held personally liable for these debts if a valid creditor remains unpaid after the distribution of the estate;
- filing tax returns for the deceased and for the estate;
- selling assets as necessary and distributing the estate; and
- preparing and obtaining approval from the beneficiaries, heirs-at-law or the court for accounts showing assets, receipts, disbursements, and distribution of the estate.
Is an executor or administrator entitled to be paid for his or her work?
Yes. In most cases, an executor or administrator is entitled to a fee for his or her time and trouble. The maximum fee is 5 per cent of the value of the estate.
When the executor or administrator prepares accounts to be approved by the beneficiaries, heirs-at-law or the court, an application for compensation should be included. After the accounts are approved, the executor or administrator may then pay him or herself the approved amount.
If the executor is also a beneficiary, he or she may apply for a fee unless the will states that the bequest to the executor includes the executor’s fee.
If I am named as an executor or administrator, must I hire a lawyer?
No, but a lawyer can make your work much easier. A lawyer may assist you to locate and collect assets, prepare any necessary applications to court, assist with transfer of assets into your name as executor or administrator, prepare accounts, obtain releases and file tax returns.
Legal fees are considered a proper expense and (subject to the approval of the beneficiaries, heirs-at-law or the court) may be paid out of the estate funds.
The services of a lawyer are recommended when questions about the validity or interpretation of a will arise, and an application to court becomes necessary.
May I administer an estate on my own?
Yes, but you will need to be well organized and prepared to do a lot of paperwork. We recommend that you buy a self-help guidebook in addition to the necessary estate forms. Forms and guidebooks are available from stationery stores and other retail outlets.
Additional Information and Assisstance
If you require further legal advice or need assistance in preparing a will or an application to court for probate and administration, please contact us for a free initial consultation at 604-294-0101.