Frequently Asked Questions about Wills in BC:
- If a person dies without a Will, how will the property in his or her name be distributed?
The Wills, Estates and Succession Act (WESA) governs all legal matters relating to estates in BC.
If a person dies without a Will, the law defines the deceased as an Intestate and distributes property according to default rules.
The common distribution rules are as follows:
If the deceased had a spouse but no children, the entire estate passes to the spouse. If the deceased had a spouse and children, $300,000 is paid to the spouse and if there is any money left over after the $300,000 is paid, the spouse receives half of what is left over and the other half is divided equally among the children. If the deceased had a spouse and children, but there are children who were not born to the spouse, then $150,000 is paid to the spouse in advance of all assets, and if $150,000 is paid to the spouse, the spouse receives half of the remaining assets if there is anything left in the estate, and the other half is divided equally among the children. If there is no spouse but there are children, the estate is divided equally among the children. If there is no spouse and no heirs, then the entire estate will go to the deceased's parents, and if the parents are no longer alive, then to the deceased's other siblings, etc.
- What is a trustee in a will and can I appoint my minor child as a trustee of my will?
The trustee of a will, collectively referred to as the Trustee or Executor in BC, is the person or company responsible for the administration and distribution of the estate. A trustee has a duty to act in the best interests of the deceased and the beneficiaries of his or her will. Generally, the trustee must ensure that the deceased's estate is distributed in accordance with the intent of the deceased's will.
If the deceased named A as a testamentary trustee in his or her will, then A will have all the powers of administration of the deceased's estate during his or her lifetime and will distribute his or her estate in accordance with the deceased's will. The powers include, but are not limited to, renting out the deceased's home, estimating the value of the deceased's property, selling the deceased's property, and managing companies in the deceased's name.
If A, the sole appointed trustee, is a minor at the time of the deceased's death, A's guardian can apply to act as a substitute trustee under section 134 of the BC Estates Act, and if A's guardian does not make an application, the court will appoint another suitable person to deal with the will. At a later date, when A reaches the age of 19, the Court will reinstate A's right to execute the Will and the power of the Substitute Trustee will be withdrawn.
- I already have a Will. What can I do if I want to change the contents of my Will?
You can choose to sign a Codicil, but the safest way is to make a new Will and destroy the original.
Do not alter the original Will without consulting a professional solicitor as there is a high risk that the Will will be executed with ambiguity or even ruled by the court to be invalid.
- If I have some assets in China and some assets in Canada, how do I make a will?
The rules for wills in China and Canada are very different, so many wills made under Chinese law are not acceptable under Canadian law. To be on the safe side, it is best to make a will in China to distribute the assets in China and another will in Canada to distribute the assets in Canada. Generally, you can have a Canadian lawyer make a will in Canada stating that the will is for Canadian assets only, and then make a will in China stating that the will is for Chinese assets only.
To avoid unnecessary ambiguities and legal risks, consult a professional probate lawyer to analyze your will's distribution wishes and legal feasibility.