Did they actually intend to sign this draft or
did they have a change of heart? Was the draft
incorrect? And what about a typed and signed
note left instead of a Will—was it written
under duress or perhaps even forged?
New division of assets if someone dies
intestate
In the past, many a bereft spouse received
less under an intestacy than if they’d actually
divorced their now-deceased spouse. For
example, if the deceased had more than one
surviving child from various relationships,
the surviving spouse would receive only the
first $65,000 from the deceased’s estate, as
well as the right to live in the family home
for life and a third of whatever else was left.
Now, however, the surviving spouse inherits the first $150,000 from the estate if the
deceased spouse had children from a prior
relationship, or $300,000 if they shared the
same children; in both instances, the surviving
spouse also receives at least 50% of the remaining assets. And while the survivor no
longer automatically gains the right to reside
in the family home for life, they do get the
right to purchase it or take it as a share of the
inheritance. Moreover, if they can’t afford to
buy the home outright, the court can now
allow the surviving spouse to continue living
in the home and pay interest to the other
heirs on the portion of the house that the
surviving spouse couldn’t afford to purchase.
All the same, this solution is probably not
what most families would desire, particularly
in the case of a first marriage with children,
where the surviving spouse commonly receives everything under a Will. For one thing,
this division of assets has the potential to
trigger tax that could have been deferred
through a spousal rollover if there had been
a Will leaving everything to the spouse or to
a qualifying Spousal Trust. As the intestacy
rules will still apportion part of the estate to
the children, most of the assets allocated to
the children would trigger taxes on the deceased’s terminal tax return—taxes that
would otherwise have been avoided. This can
be particularly devastating if, for example,
the deceased was the sole owner of rental or
vacation property or the sole shareholder of
a successful corporation.
Moreover, the new rules still leave the Public
Trustee in charge of administering any assets
received by minor and/or at-risk heirs; this also means the assets will be distributed directly to
the minor heirs when they turn 19.
Judges now able to order estates to pay maintenance to spouses and/or children
The current provisions provide a clear framework that explains how someone can apply for
support and outlines options regarding how the support is to be paid.
Time will tell
To say that WESA had made wholesale changes to the world of Wills and estates in British Columbia
is an understatement. While the next few years will reveal how the new provisions play out in
practice, the early consensus is that the benefits should far outweigh the challenges.
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CPABC in Focus • July/August 2015 25