Clear, practical insights into estate planning under WESA in BC.
Introduction
Estate planning in British Columbia has undergone significant changes since the enactment of the Wills, Estates, and Succession Act (WESA) in 2014. For individuals navigating wills, probate, or estate litigation, understanding WESA is essential. This law modernized the province’s approach to estate administration, inheritance rights, and dispute resolution.
Whether you’re preparing your will, dealing with the loss of a loved one, or facing estate disputes, WESA outlines the framework that governs your rights and responsibilities. It also consolidates several outdated laws into a single, comprehensive statute, making the estate planning process more straightforward and accessible. This article will walk you through WESA in plain language, break down the law into digestible parts, and offer actionable insights to help you make informed decisions.
If you’re currently facing estate-related questions, Hillside Law’s experienced legal team is here to support you. Learn more about our services or get in touch.
What Is WESA?
Purpose and Background
The Wills, Estates and Succession Act (WESA) came into force on March 31, 2014. Its primary aim is to simplify and unify the laws relating to estate administration in British Columbia. Prior to WESA, various statutes addressed different aspects of inheritance, leading to confusion and inefficiencies. WESA streamlines these into one accessible framework.
Who Does It Apply To?
WESA applies to all residents of British Columbia and governs what happens to a person’s estate when they die, with or without a will. It also clarifies rules around the creation and interpretation of wills, survivorship requirements, and legal rights for spouses and children.
What WESA Covers
- Validity and revocation of wills
- Intestate succession (dying without a will)
- Wills variation claims
- Probate and administration
- Executor and administrator duties
- Rights of beneficiaries
- Asset distribution
Creating and Validating a Will Under WESA
Legal Requirements
WESA sets out clear guidelines for the creation of a valid will:
- The testator must be 16 years or older.
- The will must be in writing.
- It must be signed by the testator in the presence of two witnesses.
- The witnesses must also sign the will.
These conditions ensure the will is legally binding and can be used to distribute the estate upon death.
Exceptions and Judicial Discretion
One significant update under WESA is the court’s ability to cure deficiencies in a will. If a document doesn’t meet the formal requirements but clearly expresses the testator’s intentions, the court may still recognize it as a valid will.
This change reflects a shift toward honoring the deceased’s wishes, even in cases where technical rules are not fully met.
Revocation and Alteration
Wills can be revoked by creating a new will, by destroying the old will, or through marriage (unless the will explicitly states it should survive marriage). Amendments must be made using a codicil, which also needs to meet the same legal standards as a will.
Intestate Succession in British Columbia
What Happens Without a Will
If someone dies without a valid will, they are considered to have died intestate. WESA sets out specific rules on how their estate will be distributed.
Order of Priority
- Spouse – If there are no children from another relationship, the spouse inherits the first $300,000 and half of the remainder.
- Children – If children are from another relationship, the spouse receives $150,000 and half of the remainder. The rest goes to the children equally.
- Extended Family – If there are no spouse or children, the estate goes to parents, then siblings, then nieces and nephews, and so on.
Importance of Having a Will
Without a will, your assets may not be distributed as you would prefer. Additionally, loved ones may face unnecessary stress and delay in managing your affairs. Creating a will ensures your wishes are carried out clearly and efficiently.
Wills Variation: Challenging a Will in BC
Legal Grounds
WESA allows a spouse or child to challenge a will if it does not provide adequate maintenance and support. The Supreme Court of British Columbia can order changes to the will based on what is “just and equitable.”
Who Can File a Claim?
- Legal spouses
- Common-law spouses (lived together for at least two years)
- Biological and adopted children
Key Factors Considered by the Court
- The size of the estate
- The financial need of the claimant
- The relationship between the deceased and the claimant
- The contributions made by the claimant to the estate
Time Limit to File a Claim
You must file a wills variation claim within 180 days from the grant of probate.
Probate and Estate Administration
What Is Probate?
Probate is the legal process of validating a will. It confirms the executor’s authority to act on behalf of the deceased’s estate.
The Probate Process
- Locate the original will.
- Apply for a Grant of Probate through the BC Supreme Court.
- Notify beneficiaries and creditors.
- Inventory and value the estate assets.
- Settle debts and taxes.
- Distribute the remaining estate according to the will.
When Probate Is Not Required
Some assets bypass probate, including:
- Jointly held property with right of survivorship
- Life insurance policies with named beneficiaries
- RRSPs and TFSAs with named beneficiaries
Probate Fees in BC
Probate fees apply to estates valued over $25,000:
- $200 flat fee for estates over $25,000
- $6 per $1,000 for amounts between $25,000 and $50,000
- $14 per $1,000 for amounts over $50,000
Executor and Administrator Duties
Executor’s Role
An executor is named in the will and is responsible for managing the estate. Duties include:
- Securing and inventorying assets
- Paying debts and taxes
- Filing court paperwork
- Distributing assets
- Keeping records
What if There Is No Will?
If there is no will, the court appoints an administrator to fulfill similar duties. This person is typically a close family member.
Tips for Executors
- Stay organized with documentation.
- Communicate clearly with beneficiaries.
- Seek legal help when necessary.
You can meet our team for assistance in navigating this process.
Executor Compensation in BC
Executors are entitled to fair compensation for their time and effort. In British Columbia, the typical range is up to 5% of the estate’s total value, depending on the complexity of the work involved. The amount must be reasonable and may be reviewed by the beneficiaries or the court.
FAQs
1. What is WESA and why is it important?
WESA is British Columbia’s legislation governing wills, estates, and succession. It standardizes how estates are administered and ensures fair distribution of assets.
2. Can a handwritten will be valid under WESA?
Yes, if the court determines the document reflects the testator’s intentions, it may be accepted even if it lacks formal requirements.
3. How long does the probate process take in BC?
Typically 6 to 12 months, depending on the estate’s complexity and whether there are disputes.
4. What happens if multiple people claim to be executors?
If multiple executors are named, they must act jointly unless one renounces. If there’s disagreement, the court may intervene.
5. Can WESA be used to challenge property held in joint tenancy?
Generally, joint tenancy assets pass directly to the surviving co-owner, but in some cases, courts may examine whether joint ownership reflects the deceased’s intentions.
Conclusion
Understanding the Wills, Estates, and Succession Act (WESA) in BC is critical for anyone involved in estate planning or administration. This law has brought clarity and consistency to estate matters in British Columbia, making it easier for families and professionals to manage the legal and emotional complexities of death and inheritance.
From creating a valid will to understanding intestate succession and navigating probate, WESA provides a comprehensive legal structure. However, legal guidance is invaluable. Estate planning and administration require tailored advice, especially when disputes arise.
To learn more, get in touch with Hillside Law or explore our team. We’re here to help you move forward with confidence.
If you’d like more legal information, visit the BC Government’s guide on estate planning.
