FAQs: Wills and Estates

ADMINISTRATION OF AN ESTATE

  1. What is involved in settling the affairs of a person who dies leaving a Will?
    That person is said to die "testate" and the Supreme Court appoints the person named in the Will to act as Executor in the administration of the Estate.

    We advise the Executor on all legal matters relating to the administration of the Estate. We ascertain the proper testamentary documents and advise the Executor as to their interpretation. We assist in determining the assets within the Estate and then prepare and file the necessary documents in the Probate Registry of the Supreme Court to apply for authority on behalf of the Executor to administer those assets pursuant to the Will. This authority is called Letters Probate, which confirms the validity of the Will and the powers of the Executor. We contact the holder of each of the assets in the Estate to determine the requirements for transfer. We then attend to the transfer of the assets into the name of the Executor, the advertisement for creditors, the payment of all debts and the distribution of the remainder of the Estate to the appropriate parties pursuant to the Will.

  2. What does the Estate consist of?
    All assets owned by the Deceased at the time of death constitute the Estate. We determine the status of title to the assets, ascertaining their location and market value at the time of death. Arrangements to ascertain, preserve and protect the assets should be made as soon as possible. Assets held in joint tenancy are not included in the Estate and may not be used to satisfy debts of the Deceased.

  3. What happens with the debts of the deceased?
    The Executor must determine the balance outstanding of any debts owed by the Deceased so that arrangements for payment can be made. If the Executor is not satisfied that such debts are legitimate debts of the Deceased, it is the Executor's responsibility to contest or settle such debts. The Executor will be personally responsible for debts to the extent of assets passing through the Executor's hands even without notice of those debts. To protect the Executor from claims by creditors of the Deceased, advertisements for creditors should be placed. Subject to other limitation dates, the Executor is not permitted to distribute the assets of the Estate until 21 days from the last publication has elapsed.

  4. How are the assets of the Estate dealt with?
    We assist the Executor to realize the assets of the Estate, including: communicating with all necessary parties (such as banks, financial institutions, government offices), preparation of all necessary documents to transfer or sell the assets, receipt of funds and liaison with the Executor regarding the various assets. There are several limitation dates imposed by the Wills Variation Act and the Estate Administration Act before the assets can be distributed.

  5. What are the Income Tax requirements?
    The Executor should determine whether or not all appropriate Income Tax Returns have been filed. Before distributing the assets of the Estate, the Executor should obtain a certificate from the Minister of National Revenue certifying that all taxes, interest or penalties have been paid.

  6. What fees can the Executor charge?
    The Executor must keep separate accounts and not co-mingle Estate assets with any personal assets owned by the Executor. All expenses incurred in the administration of the Estate should be recorded. Reimbursement is allowed for all proper and reasonable expenses. The Executor must prepare accounts for approval by the residuary beneficiaries or taxation before the Registrar. The Executor's fee usually varies between 2 and 5 per cent of the aggregate value of the Estate, depending upon the size of the Estate and the amount of work required. In addition, the Executor may be entitled to an annual fee of up to .4% of the average market value of the assets for care and management of the Estate.

  7. What are the costs?
    The costs depend on the particular circumstances and generally include three components. First are the legal fees for the advice and services rendered. Second are the disbursements or out of pocket expenses such as search fees, appraisals, Probate fees, advertising charges, long distance charges, etc. Third are the applicable Provincial and Federal taxes.

  8. How long does it take to administer an estate?
    Assuming the administration of the estate is straightforward, a typical estate would take four to six months to complete, depending on the number and the nature of the assets involved and the availability and cooperation of all parties concerned.

  9. How do you contest a Will?
    A spouse or child of the deceased may bring an action under the Wills Variation Act on the basis that adequate provision was not made for him or her under the Will and asking the court to in effect "re-write" the Will. Further, an action may be brought alleging the Will is invalid due to improper execution, undue influence or lack of capacity, and—if successful—the Estate Administration Act would govern the distribution of the Estate.

 

INTESTATE SUCCESSION

  1. What is involved in settling the affairs of a person who dies without leaving a Will?
    When someone dies without a Will, that person is said to die "intestate" and the Supreme Court of British Columbia appoints an Administrator of the Estate pursuant to the Estate Administration Act, which governs how the Deceased's assets will pass.

    We advise the Administrator on all legal matters relating to the administration of the Estate. We assist in determining the assets within the Estate, and then prepare and file the necessary documents in the Probate Registry of the Supreme Court to apply for Letters of Administration on behalf of the Administrator to administer the assets. We then attend to the transfer of the assets into the name of the Administrator, the advertisement for creditors, the payment of all debts and the distribution of the remainder of the Estate to the appropriate parties pursuant to the Estate Administration Act.

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