Health Care Decisions and Wills (16:X)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 8, 2022.|
British Columbia law provides for three formal instruments by which direction for health care and personal care decisions may be made in advance:
- Representation Agreements, which allow a donor to appoint representatives to make decisions regarding health and personal care. These are discussed further in Chapter 15: Adult Guardianship and Substitute Decision-Making.
- Advance Directives, which contain specific directions regarding health care, that are binding on health care providers.
- Nominations of Committees, which permits an individual to express their preferences regarding who may be appointed as a person’s committee in case of incapacity.
A. Testate and Intestacy
The authority to administer the estate of a deceased individual vests with the personal representative, whose identity will depend largely on whether the deceased individual had a valid will when they died.
If the deceased individual died with a valid will, it is said that that individual died “testate”. The executor named under the last valid will, if they accept the appointment, will be vested with legal authority over the estate. In theory, an executor takes authority from the will, and accordingly has authority immediately upon death. This concept is expressed through the legal adage that a will “speaks from death.” In practice, although an executor has legal authority from the date of death, most third parties (e.g. banks and the Land Title and Survey Authority) will not recognize that authority without a representation grant from the court.
If the deceased individual died without a valid will, they are said to have died “intestate”. In such a case, an application must be made to the court for the appointment of an administrator for the estate. As there is no valid will, the authority to deal with the estate originates from the court grant of administration. This concept is codified in section 102 of the Wills, Estates and Succession Act (“WESA”), which provides that in the case of an intestacy, or if an executor is not named in a will, the estate of the deceased person “vests in the court”.
B. Representation Grants Generally
Grants of probate and grants of administration are two types of “representation grants”. As a valid will grants authority to the named executor, there is theoretically no need for a named executor to obtain a representation grant from the court. As a practical matter, however, an executor may not be able to accomplish much without a representation grant.
If there is no will, all of the property of the deceased vests in the court (WESA, s 102), and accordingly, no person has authority unless the court issues a representation grant to that person.
Two provisions in WESA are particularly important to understanding the basic effect of obtaining a representation grant. First, section 136 of WESA provides that a representation grant, when issued by the court, gives exclusive authority to the person named in the grant to administer the estate. Second, section 137 of WESA provides that a person who transfers estate property or releases a document or information to a personal representative is not liable for any damage that may result. These two sections give legal assurance to third parties dealing with a personal representative.
An administration grant is usually applied for in the jurisdiction where the deceased was domiciled at the time of death. Where a person was last residing is a good indicator of domicile, but it is not determinative.
If the deceased had assets in multiple jurisdictions, it may be necessary to obtain a representation grant in one jurisdiction, and then to have that grant “resealed” locally in each jurisdiction where assets are located. Furthermore, in such a situation, British Columbia law, including intestacy rules for example, may not apply. These situations are governed by the rules of “conflict of laws”.
A grant of probate is a form of representation grant that is issued to the executor appointed by a will. Pursuant to sections 136 and 137 of WESA, a grant of probate gives exclusive authority to the named executor to deal with the estate and grants legal protection to third parties who rely upon the grant.
2. Who May Apply?
An executor appointed under a will may apply for a grant of probate. An alternate executor may apply if the conditions set out for the appointment of that alternate executor are satisfied.
3. Solemn Form versus Common Form
Where the validity of a will is uncontested, the registrar of the court may issue the grant of probate (WESA, s 129(3)) upon an application being made in the form and manner set out in the Supreme Court Civil Rules.
Although obtaining a grant in this manner will ordinarily be sufficient, it does not conclusively determine that a will is valid. Where a grant has been obtained this way, the will has been proven only in “common form” or “simple form”. If the will is later found to have been invalid, or a later will is found, the grant of probate may be revoked. In this situation, the personal representative may be liable for having distributed the estate assets to the incorrect beneficiaries.
Obtaining proof of a will in “solemn form” (also known as “proof in form of law” or “proof per testes”) gives a greater degree of protection to an executor. This requires a hearing in open court before a judge, with testimony from witnesses to the will. If a will is proven in solemn form, the grant cannot be revoked unless a later will shows up, or it was obtained by fraud (see Romans Estate v Tassone, 2009 BCSC 194 for a discussion).
A grant of administration is a form of representation grant issued to an individual other than an executor appointed under a will. A grant of administration will be required on intestacy, or where there is a will, but the appointed executor is unwilling, incapable or dead, or where no executor is appointed. The procedure for administration is similar to probate, except that the court must appoint an administrator, and bonding may be required.
The consent of the Public Guardian and Trustee’s office is required where a minor’s property is involved. The Public Guardian and Trustee’s consent is also needed on probate if any minor is a beneficiary and a trustee is not appointed in the will for such minor beneficiary. An administrator’s powers and duties are indistinguishable from an executor’s and are set out in WESA.
2. Who May Apply?
Under sections 130 and 131 of WESA, an individual may apply to the court to be appointed Administrator of an estate. Section 130 enumerates the order of priority for applicants of an intestate estate, favouring the spouse of the deceased, followed by a child of the deceased who obtains the consent of the majority of the children of the deceased. Section 131 enumerates the order of priority for applicants of an estate where the appointed executor is unable or unwilling to act. Priority is given to a beneficiary that applies with the consent of the beneficiaries who, along with the applicant’s interest, are entitled to a majority interest in the estate.
F. Probate Fees
Before a grant is issued, probate fees must be paid on the value of the deceased’s assets as at the date of death. Only secured debts (i.e. debts secured on property by a mortgage) may be subtracted from the value of assets when determining the amount of fees payable. It should also be noted that probate fees in British Columbia are low. As stated in section 2(3) of the Probate Fee Act, SBC 1999, c 4.
- 2(3) If the value of the estate exceeds $25 000, whether disclosed to the court before or after the issue of the grant or before or after the resealing, as the case may be, the amount of fee payable for an estate over $25 000 up to $50 000 is
- (a) $6 for every $1 000 or part of $1 000 by which the value of the estate exceeds $25 000 but is not more than $50 000, plus
- (b) $14 for each $1 000 or part of $1 000 by which the value of the estate exceeds $50 000.
An easy way to calculate probate and application fees for estates over $50,000 is to round the value of the estate to the next $1,000, multiply it by 0.014 and subtract $350 from the result.
G. Assets Passing Outside of Estate
Not all assets of the deceased will form part of the estate. It is not necessary to obtain a representation grant to deal with these assets.
There are four primary categories of assets that fall outside of the estate:
- Pensions and retirement plans, including Registered Retirement Savings Plans, Registered Retirement Income Funds, for which a beneficiary may be designated. If no designation has been made or the designated beneficiary or contingent beneficiary is not alive to receive the proceeds on the deceased's death, then the asset will be an asset of the estate and will vest in the personal representative.
- Life insurance proceeds, for which a beneficiary or successor may be designated. If no designation has been made or the designated beneficiary or contingent beneficiary is not alive to receive the proceeds on the deceased's death, then the asset will form part of the estate.
- Assets held in joint tenancy with another will pass to the surviving joint tenant.
- A Tax-Free Savings Account for which a beneficiary has been designated will not form part of the estate. If no designation has been made or the designated beneficiary or contingent beneficiary is not alive to receive the proceeds on the deceased's death, then the asset will pass through the estate.
A vehicle registered in the name of a deceased owner can be transferred at an Insurance Corporation of British Columbia Autoplan broker. If the motor vehicle is owned jointly, the surviving owner will need to bring the current vehicle registration and the original death certificate or a certified copy of it.
If the estate is valued at less than $25,000, the executor of the estate may transfer the vehicle without obtaining probate of the last will. The executor will need to provide the original death certificate or a certified copy of it, a statutory declaration stating that the estate is not worth more than $25,000 (which can be provided by the Autoplan dealer and must be sworn before a lawyer or notary public), and the original last will.
A summary of other situations in which a vehicle can be transferred without a grant of probate may be found at https://www.icbc.com/vehicle-registration/sell-vehicle/Documents/estate-transfers.pdf.
|© Copyright 2021, The Greater Vancouver Law Students' Legal Advice Society.|
|© Copyright 2021, The Greater Vancouver Law Students' Legal Advice Society.|