BRIEF LEGAL OVERVIEW
Brief Legal Overview
In general terms, when a person dies in BC, the deceased’s personal representative gathers up the deceased’s assets, pays the deceased’s debts, and distributes the rest of the deceased’s estate to the beneficiaries. For small estates, that may be quite simple. For most estates, however, it can get complicated quickly, so a lawyer can help.
This section is for people who have some legal knowledge and want to understand the different legal processes and options. As with the other sections of this manual, it is not intended to be a substitute for legal advice. If you are handling a complicated estate, or there is estate litigation, you should seek legal help.
Wills, Estates and Succession Act
The Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”) and accompanying Probate Rules (Part 25 of the Supreme Court Civil Rules) became law on March 31, 2014. WESA sets out the current law about when a will is valid, what happens if there is no will, and how the estate is distributed.
If there is a will, the personal representative is an executor. The executor is a trustee, bound to act for the good of the estate, even though the executor may also be a beneficiary or have a personal interest in the estate assets.
If there is no will, the deceased is said to have died intestate. The personal representative must distribute the estate to specific relatives of the deceased following the order of intestate succession as set out in WESA (sections 19-25).
WESA does not apply to the estate of a will-maker who died before March 31, 2014. In that case, the older laws apply, such as the Estate Administration Act, R.S.B.C. 1996, c. 122, the Probate Recognition Act, R.S.B.C. 1996, c. 376, the Wills Act, R.S.B.C. 1996, c. 489, and the Wills Variation Act, R.S.B.C. 1996, c. 490.
Generally, WESA applies to estates where the will-maker died on or after March 31, 2014, even if the will was drafted when the older laws were in effect.
In applying for probate, it is the date of application not the date of death that matters. In applying for probate on or after March 31, 2014, use the new forms.
New Probate Rules
The Probate Rules set out the steps in bringing estates matters before the court. The Rules identify who must be given notice of any particular claim, how the claim will proceed when it is before the court, and what the possible outcomes are.
These Probate Rules also prescribe which form must be used in any particular claim, and provide templates for the forms:
- For a User Guide to the forms, with links to fillable .pdf versions, click here.
- For a list of forms in .html, click here.
The Supreme Court of BC has posted online resources to help you with a proceeding in court:
In general, a trust is created when the person who owns assets gives them to another person to be held and used for a particular purpose or by a particular beneficiary. The person who gives the assets is the settlor of the trust, and the person who holds and manages the assets is the trustee.
An express trust is created when three things are certain: the intention to create a trust, the assets that comprise the trust, and the beneficiary of the trust.
Express trusts can be set up for many purposes:
- to invest a lump sum to provide ongoing interest for a beneficiary who might not have the interest or ability to handle investing it,
- to give a gift to a beneficiary during the will-maker’s lifetime without the will-maker losing all ownership and control over the asset,
- to control how the beneficiary receives the income,
- to control how the capital is managed on behalf of the beneficiary,
- for effective tax planning, or
- for a combination of these purposes.
There are different types of trusts, and they can have different tax treatments. They can be effective for tax planning, but there were significant changes to taxation of trusts affecting the 2016 and later taxation years. You should get advice from a lawyer or financial planner about setting up or managing a trust.
There are resources to help set up trusts for persons with disabilities:
- Disability Alliance BC produces fact sheets on registered plans for people with disabilities as well as “Trusts for People Receiving the Persons with Disabilities (PWD) Benefit,” and
- Coast Mental Health provides a Trust Program to set up trusts for people who have mental disabilities.