Wills and Estates Lawyers Surrey BC

Below we’ve compiled answers to some common questions people ask about wills, estates, and probate in British Columbia. We hope this FAQ section clears up a few more points in a reader-friendly way. If you have a question not covered here, feel free to reach out to merchantlaw.com – we’re always happy to help answer your wills & estates queries!

Q: Do I really need a lawyer to draft my will in BC, or can I do it myself?

A: Legally, you are allowed to draft your own will in BC. There are do-it-yourself will kits and online templates available. However, be very careful if you go this route. While simple situations might be handled with a basic will, many things can go wrong if the will isn’t clear or doesn’t meet formal requirements. Common issues with DIY wills include improper witnessing (making the will invalid), ambiguous wording that causes confusion, or failing to account for contingencies (like what happens if a beneficiary predeceases you). BC’s WESA law even allows the court to accept a document as a will if it wasn’t properly executed, but that requires a court application which is costly and not guaranteed to succeed. Hiring a wills lawyer ensures that your will is valid and unambiguous, and that it covers all necessary details. It’s an investment in peace of mind – your estate is likely worth enough that spending a bit on a proper will now is far cheaper than the potential tens of thousands in legal fees that a botched will could cost later in disputes. For most people, we strongly recommend using a lawyer. At merchantlaw.com, we offer straightforward will-drafting services and can often do a basic will relatively quickly and affordably.

Q: How much does it cost to make a will with a lawyer in BC?

A: The cost can vary depending on complexity and the lawyer’s fee structure. For a simple will for an individual, lawyers in BC might charge a flat fee in the range of a few hundred dollars. Many firms offer a package for couples (since often spouses have mirror wills) at a combined rate. If you include additional documents like powers of attorney and representation agreements, the package might be a bit more. For example, a basic estate planning package (will, POA, rep agreement) could be somewhere around $1,000 to $1,500 for everything, though prices vary by region and firm. If your situation is more complicated (multiple properties, a wish to create trusts, complex distributions), the fee might be higher or charged hourly. It’s best to call and ask for an estimate based on your needs. Keep in mind, the cost of doing it right is almost always less than the cost your estate (or family) would bear to fix problems later. merchantlaw.com provides transparent fee quotes, so you’ll know the cost upfront before proceeding.

Q: What are probate fees exactly, and can I avoid them?

A: Probate fees are essentially a provincial charge for processing the estate through the courts. In BC, as detailed above, they amount to roughly 1.4% of the estate value over $50k, plus a $200 filing fee. So, on a $100,000 estate, the probate fee would be about $1,400; on a $1 million estate, about $14,000. To many, this feels like a “tax” on dying. People often ask how to avoid or minimize this. Some strategies include: using joint ownership for major assets (so they pass outside the will), naming beneficiaries on things like RRSPs or life insurance, or even creating trusts. These can legitimately reduce what goes through probate. However, it’s important not to let the probate tail wag the dog – meaning, don’t make estate planning decisions solely to avoid probate fees if they create other problems. For instance, giving your house to your child jointly now could avoid probate on that house, but it might expose the house to your child’s creditors or relationship breakdown, which is a much bigger risk than 1.4%. Or it could cause fights among siblings if not handled carefully. Our advice: Yes, discuss probate-avoidance strategies with a lawyer if you’re concerned (especially for very large estates), but weigh the pros and cons. Sometimes paying the fee and doing things in a straightforward way is better for overall harmony and simplicity. A merchantlaw.com estate planning lawyer can help map out the best approach for your situation.

Q: Is there any estate or inheritance tax in British Columbia?

A: Good news – No, British Columbia (and Canada as a whole) does not have an inheritance tax or estate tax like some other countries do. This means the beneficiaries do not pay tax on the amounts they inherit. However, that doesn’t mean there are no taxes at death at all. What happens in Canada is that when someone dies, it’s as if they sold all their assets for tax purposes. For example, if you have investments or a cottage that went up in value, there may be capital gains tax on your final tax return. The estate pays any income taxes owed by the deceased for the year of death (and any prior year balances owing). Also, if you have things like RRSPs or RRIFs and they don’t roll over to a spouse, those are fully taxable as income in the year of death. The executor uses estate assets to pay those taxes. After that, whatever is left goes to the beneficiaries tax-free. So, beneficiaries in BC don’t pay tax on the gift itself, but the estate might have had its tax bill settled first. One other tax-related thing: if your estate earns income (say, rent from a property or investment interest) during the administration period, the estate might need to pay tax on that income. Executors should get an accountant’s help to file the necessary returns. In summary, no inheritance tax, but be mindful of final income taxes. This is another area where estate planning (like leaving an RRSP to a spouse to defer tax, or using life insurance to cover anticipated taxes) can help. For personalized advice on estate-related taxes, consult merchantlaw.com or your accountant.

Q: How long do I have to probate a will after someone dies? Is there a deadline?

A: There isn’t a hard and fast deadline to file for probate in BC after a death, but generally, the sooner the better to begin the process. Many estates aim to have the probate application filed within a few months after death. That said, there are practical timelines: for example, if house insurance is an issue, the executor might need probate to deal with the house, etc. One year after death is sometimes mentioned (this is because beneficiaries might start to question delays after about a year), but it’s not a legal deadline for filing – it’s more of a guideline often called the “executor’s year.” Beneficiaries usually expect some progress or interim distribution within a year. If an executor delays unreasonably in even starting probate, beneficiaries can apply to court to compel action or even to replace the executor. On the other hand, rushing isn’t always possible; sometimes gathering asset info or dealing with family matters can take time. The key is communication – if you explain the reason for delay to beneficiaries, they’re often understanding. Note: there is a related timeline that’s important – the 180-day limit for wills variation claims (for spouses or children to contest the will’s fairness) starts ticking after probate is granted, not from death. This is why executors shouldn’t distribute the estate too soon. In short: No strict deadline to apply for probate, but don’t sit on it too long. It’s wise to start the process within a few months of the death. If you have extenuating circumstances causing delay, consider consulting a lawyer. merchantlaw.com can assist executors at any stage, whether it’s been weeks or many months since the passing.

Q: What if I don’t want to be an executor? Can I refuse or resign?

A: Yes, being an executor is a responsibility, not an obligation you must accept if you’re named. If the person is still alive and you discover you’re named as executor in their will and you don’t want the role, you can discuss with them to change it. If the person has already passed and you are named executor but haven’t started acting yet, you can renounce your executorship. Renunciation is a formal process: you sign a document (a Renunciation of Probate) that is filed with the court, stating you give up the right to probate the will. This allows the alternate executor (if one is named) to step up, or if none, another interested party (like a beneficiary) to apply to be administrator with will annexed. Important: You must not have intermeddled in the estate (meaning you haven’t already taken on the executor’s duties beyond perhaps trivial things). If you already started acting (gathering assets or managing affairs), the court might not allow you to renounce easily. In that case, you may have to ask the court to be removed or pass the torch, which is more involved. If you’re mid-way through and need to resign (due to health or other serious reasons), the court can appoint a replacement, but you’d likely need to pass accounts for what you’ve done so far. It’s a lot simpler to step down before officially taking on the job. So, if you’re named and unwilling, do so right at the outset. A lawyer can prepare the renunciation and ensure it’s filed correctly. The estate then proceeds with whoever is next in line. merchantlaw.com can help with both renunciations and advising substitute executors on how to take over.

Q: My parent died and I’m pretty sure I’m in the will, but I haven’t seen it. How do I know if I’m a beneficiary, and when will I get my inheritance?

A: When someone passes, the person holding the will (often the executor) is supposed to locate and read it. If you are a named beneficiary, the executor is required to notify you when they apply for probate, sending you a copy of the will (or at least the part that pertains to you) and a notice of their intent to probate. If probate hasn’t been applied for yet, you might gently ask the executor (or whoever you think has the will) if you are named. They should be transparent unless there’s some confusion or a dispute brewing. Once probate is granted, the will becomes a public document – meaning you could obtain a copy from the court registry if needed. As for when you’ll get your inheritance: unfortunately, not immediately. The executor must first get probate (which can take a few months), then gather assets, pay debts, etc., which can take more months. Typically, you might see partial distributions a few months after probate if the estate is straightforward, but full settlement can often be around the 1-year mark or more, as explained in the timeline section. If a year has passed since the death and you’re still in the dark, it’s reasonable to request an update from the executor or even consult a lawyer to get things moving. Remember, beneficiaries have the right to information and ultimately to see the executor’s accounting of the estate. If you suspect wrongdoing or unnecessary delay, a lawyer can help press the issue. In most cases, patience is key – dealing with an estate takes time. But polite check-ins are okay. If merchantlaw.com is assisting the executor, for example, beneficiaries often get periodic updates from us. Communication helps manage expectations on all sides.

Q: Can an estranged child or a stepchild not formally adopted make a claim on the estate?

A: Under BC law, a biological or legally adopted child can make a wills variation claim (seeking a share of the estate for being left out or inadequately provided for), even if they were estranged or the parent-child relationship was poor. Estrangement is not an automatic bar – it’s just one factor the court considers among many in a variation claim. There have been cases where an estranged adult child still got something from the estate, and others where the estrangement was deemed a valid reason to disinherit. It really depends on details: who caused the estrangement, any efforts to reconcile, reasons given by the parent, etc. As for stepchildren: unless legally adopted, they are not considered “children” under WESA for the purpose of will variation claims. A stepchild who was never adopted has no automatic right to challenge the will for a share under that law. They might only benefit if they were specifically included in the will, or potentially via a different legal doctrine (like if they were financially dependent and possibly a constructive trust claim, which is complex). If a person wanted to provide for a stepchild, they must explicitly include them in the will or other estate planning; otherwise, the stepchild typically gets nothing if the estate goes to the spouse or blood children. If you are an estranged child or a disinherited child considering a claim, or an executor facing one, definitely seek legal advice. These cases can be nuanced. merchantlaw.com has experience in such matters and can assess the situation (e.g., how an estrangement might influence the outcome).

Q: Are handwritten wills valid in BC? What about oral wills?

A: In BC, a will generally must be in writing and signed by the will-maker and two witnesses to be valid. BC does not formally recognize unwitnessed holographic (handwritten) wills the way some provinces (like Saskatchewan or Alberta) do, except for very limited cases (like military personnel on active duty can sometimes make unwitnessed wills). However, here’s the twist: BC’s courts have the power (under WESA s.58) to cure deficiencies. This means if you have a purely handwritten will that wasn’t witnessed, or even a typed document that you never signed, a court can order that document to stand as the will if there’s convincing evidence you intended it to be your final wishes. For example, if someone writes out a will and signs it but had no witnesses, and then dies, a court might accept it as valid via s.58. There was a famous case in BC where an unsent text message expressing will-like instructions was accepted as a will. But – this requires a court application which is costly and uncertain. So, while a handwritten will could be declared valid by a judge, it’s far safer to follow the formal steps. Oral wills (just telling someone what you want) are not valid in BC, except maybe in the most extraordinary of circumstances (again, soldiers in combat or mariners at sea historically had exceptions, but those are extremely rare and also would likely need court validation). Bottom line: If you care about your wishes, put them on paper and get the proper witnessing done. Don’t leave your family in a situation where they have to convince a court that the notes you left were meant to be a will. It’s much easier to just make a proper will. If you have an old handwritten will, consider getting it redone properly. And if you’re curious about a specific handwritten note left by a deceased loved one, consult a lawyer. At merchantlaw.com, we can help determine if it’s worth applying to court to recognize it under the law.

Q: My spouse and I just moved to BC from another country. Is our old will valid here, or do we need a new one?

A: Welcome to beautiful BC! Generally, a will made outside BC can still be valid here, especially if it was valid according to the law of the place where you made it or where you lived at the time. BC’s law has rules about recognizing foreign wills under certain conditions (for example, if it was valid where executed, BC might accept its validity). However, there are a few reasons to consider making a new will after moving to BC:

1. Different Laws: BC’s WESA might have different rules about inheritance, survivorship, and will interpretation than the place you came from. Your will might reference laws or concepts from your old home that don’t apply here.
2. Executors and Trustees: If your will named executors who aren’t in BC, there might be logistical issues or additional steps (like posting a bond if an executor lives outside certain areas). You might want to name someone locally or at least have a backup in Canada.
3. Format Differences: Some countries allow things like notarial wills, or holographic wills, etc. BC will accept some of these, but for peace of mind, aligning with BC’s formal requirements is best.
4. Updates: A move is a big life change, often accompanied by acquiring new assets (like a home in BC) or a change in circumstances. It’s a perfect time to review and update your will’s contents anyway.

It’s often simpler to draft a fresh will in BC that clearly revokes the old one and ensures everything is tailored to your new situation. Also consider updating powers of attorney and health directives, as those vary a lot by country (your living will from elsewhere might not suffice here, for example). There’s also an important note: if you hold assets in another country still, you might actually need multiple wills – one for BC assets, one for assets in your home country – depending on the other country’s probate rules. This is something a lawyer can advise on. We at merchantlaw.com frequently help newcomers to Canada align their estate planning with their new lives. We’ll review your existing will and let you know if any changes are needed to make it effective here.

Q: What does an executor have to do about debts? Are family members responsible for the deceased’s debts?

A: After someone dies, their debts are paid out of their estate, not by the family (unless someone was a co-signer or guarantor on a specific debt). The executor’s job includes identifying the deceased’s debts and liabilities – such as mortgages, credit cards, personal loans, lines of credit, income taxes owing, etc. The executor must use the estate assets to pay those debts in the correct order. Generally, funeral expenses, probate fees, and reasonable estate administration costs get paid first, then secured debts (like a mortgage) get dealt with (often by selling the secured asset or transferring it with the debt), and unsecured debts like credit cards are paid after. If there isn’t enough money in the estate to cover all debts, the estate is insolvent. In that case, there’s a specific order set by law as to which debts have priority, and some creditors may only get part of what they are owed (or nothing if the estate is completely exhausted). The family members do not have to pay out of their own pocket, except if an asset passed outside the estate (like joint property or designated beneficiary assets) and left debts unpaid, creditors can sometimes make a claim against those transferred assets in BC under certain conditions. But that’s an exception and a bit complex. Generally, if mom dies with a $5,000 credit card bill and her estate only has $3,000, that $3,000 would go to the credit card and the rest of the debt is written off – the family doesn’t owe the difference. Executors should be careful to advertise for creditors (a notice in the BC Gazette) which protects them from unknown creditors coming out of the woodwork later. If you’re dealing with an estate with lots of debt, get legal advice – you want to make sure you’re not distributing to beneficiaries before settling debts, or you could be personally liable. merchantlaw.com can guide executors on handling debts properly, and if you’re a family member being hounded by collection agencies, we can clarify your position (often just informing them it’s in probate and they need to deal with the executor/estate is enough).

Q: How can I make things easier for my family when I die? Any tips beyond just having a will?

A: Great question – planning ahead is an act of love for your family. Here are a few tips to make the eventual estate administration easier on your loved ones:

• Keep an Organized Record: Create a document (and keep it updated) that lists all your assets, accounts, insurance policies, contact info for financial advisors or lawyers, and digital assets (like email or social media accounts, plus their login info in a secure place). Include debts and utilities too. This “estate directory” will be gold for your executor and save them a ton of time. Just ensure it’s stored securely, but accessible to your executor when needed (maybe sealed and labeled “Open upon my death” or something).
• Discuss Your Wishes: While the will covers asset distribution, it doesn’t hurt to talk with your family about your wishes, especially for personal items or funeral preferences. If your children know you plan to leave one child the piano and another the guitar because of sentimental reasons, it might prevent hurt feelings later. Also, talk about funeral or memorial plans – do you want to be cremated or buried? Do you have a prepaid plan? Knowing this helps them make decisions during a very emotional time.
• Consider a Letter of Wishes: This isn’t a legal document, but some people write a letter to be kept with the will. It might explain the reasoning for certain bequests (“I’ve provided less to Jane because I paid for her education in full, whereas John still has student loans I intend to cover with this inheritance”) or give guidance on things like how to care for pets, or how to distribute personal keepsakes. It can also include a heartfelt message. This can be comforting and also practically helpful. Just make sure it’s clear that the letter is not a codicil and not meant to override the will (unless it’s actually intended to be part of the will and properly executed as such).
• Minimize Chaos: Think about any potential conflicts and address them. For example, if you have loans to one child, decide if you want them forgiven or counted against their share – and put that in the will to avoid sibling fights. If you anticipate one family member might cause trouble, discuss with a lawyer about strategies (some include a “no contest” clause, though in BC those aren’t fully enforceable in the face of a variation claim, they might deter frivolous challenges).
• Pre-arrange or Pre-pay Funeral: If you can, consider pre-arranging your funeral or at least writing down what kind of service you’d like. Even setting aside funds in a specific account for funeral costs can lift a burden. In BC, the executor can use estate funds for the funeral, but if they have guidance (like “I’d like a simple cremation and a gathering at X place”), it helps.
• Keep Documents Safe: Ensure your original will is in a safe yet findable place. Safe deposit box is okay but note that banks seal them on death – although executors can unseal to search for a will, it’s an extra step. If you use a safe deposit box, consider having your executor or a joint person have access. Alternatively, keep it at home in a fireproof box or with your lawyer. Also, BC’s Wills Registry (Wills Notice filing) is a good idea – it just tells where your will is kept. It’s cheap and can be done through Vital Statistics Agency.
• Update Beneficiaries: Keep those RRSP/TFSA/life insurance beneficiary designations current as life changes. If your ex-spouse is still named on a life insurance from years ago, that could surprise your current family.
• Incapacity Prep: We talked about enduring powers of attorney and representation agreements – those help your family while you’re alive if you ever become ill and can’t make decisions. Having those in place means they won’t have to scramble for a committeeship. So it’s part of the overall plan.

Doing all the above, along with having a solid will, is the best way to set your loved ones up for a smooth experience when the time comes. And of course, the ultimate way to make it easier is to appoint a capable executor and let them know. You’d be surprised how many people are named executors and only find out at the funeral – make sure your executor is aware and ideally has a copy of the will or knows where to find it. If you follow these tips, you’ll be alleviating a lot of stress for your family during a difficult time. The Wills & Estates lawyers at merchantlaw.com can also provide more ideas tailored to your specific situation – think of it as creating a legacy, not just of assets, but of love and care.

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