TERMS AND DEFINITIONS

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Ademption: The inability to complete a testamentary gift because the asset no longer exists at the time the will-maker dies. Click here for more.[1]

Administrator:Where there is no will, the court appoints someone, usually a family member or friend of the deceased, as an administrator. The administrator gathers and distributes the estate assets, which is called administration of the estate.

Affidavit: A written statement of facts that is signed by the person who knows the facts to be true. It is witnessed by a lawyer, notary, or other commissioner for taking affidavits.

Attestation clause: A clause in a will that describes the signing of the will, specifying that the witnesses were both present when the will-maker signed the will, and that they signed it in the presence of the will-maker.[2]

Beneficiary: A person who receives a benefit from the estate. A person may be named in the will as a beneficiary or may have a beneficial interest in estate assets.

Bequest: A gift of personal property set out in the will. It is typically distinguished from a devise, which is a gift not of personal but of real property. It may be a general entitlement or it may be a specific bequest.

Bond: A guarantee or indemnity obtained from an insurer. An executor or administrator may be required by a court to obtain a bond before being allowed to gather and distribute estate assets.

Capital gain: Increase in the value of an asset between the date of purchase and the date when the asset is sold. The date of sale is deemed to be the date of the will-maker’s death.

Citation: A form (P32)[3] requiring the executor to apply to the court for probate. If that person fails to apply for probate, he or she is deemed to have renounced executorship. An answer to a Citation is filed in Form P33.[4]

Certificate: If the registrar conducts an investigation of the accounts as part of the procedure described in Rule 25-13 for the passing of accounts, the registrar completes the certificate in Form P39.[5]

Clearance certificate: A tax clearance certificate from the Canada Revenue Agency confirms that all income taxes or fees of the estate are paid. Click here for more.[6]

Codicil: An addition to the will (usually a separate document attached to the will), which must be witnessed in the same manner as the original will.

Committee: A person appointed under the Patient’s Property Act[7] to look after the finances or well-being of a person who is found incapable of doing so.

Court: Claims under WESA must be brought to the [https:www.courts.gov.bc.ca/supreme_court/ Supreme Court of British Columbia],[8] but other matters, such as family disputes that do not include divorce, may go before the Provincial Court of British Columbia.[9]Provincial Court of British Columbia For help preparing for a hearing in BC Supreme Court, click here.

Death certificate: A certificate issued by the BC Vital Statistics Agency. Click here for more.

Designated beneficiary: A beneficiary named in a benefit plan, such as a workplace pension plan, a TFSA (tax-free savings account), or an RRSP. Click here for more.

Devise: A gift of real property described in a will.

Escheat: If a will does not dispose of all the assets, and there is no spouse or other intestate successor who would inherit, or if there is no will and no intestate successor, then the province takes the assets under WESA,[10] s. 44, and the Escheat Act.[11]

Estate: In general, it means the assets and financial affairs of the deceased.

Executor: The executor (also called the “personal representative”) is the person who gathers the assets of the estate, pays off the estate debts, and distributes the remaining assets.

Executor’s year: Click here for more.

Grant of probate: A court or registrar will make a grant (sometimes also called an estate grant or a representation grant) naming a person who is responsible for winding up the estate, paying the deceased’s debts, and distributing the deceased’s assets. If there is a will, the grant is a grant of probate and the person named to represent the deceased is the executor. Click here for more.

Holograph will: A handwritten will, usually signed by the will-maker without witnesses.

Inter-vivos trust: A trust created by the will-maker during his or her lifetime. It is different from a testamentary trust that is created in the will. Click here for more.

Intestate: Without a will. WESA[12] sets out the rules for how to divide an estate where there is no will. Partial intestacy[13] may occur if there is a will but it only deals with part of the estate, so that the portion not covered by the will is distributed according to these rules for intestacy.

Issue: Descendants, including children and grandchildren.

Lapse: If the beneficiary dies before the will-maker, a gift in a will to that beneficiary is said to lapse. Click here for more.

Legacy: A benefit conferred or received after death, whether described in a will or not.

Letters of administration: Where there is no will, a person who proposes to administer the estate (gather and distribute the estate assets) applies to the court for a grant of letters of administration.

Letters of administration (with will annexed): Where there is a will but it is not valid, a person who proposes to administer the estate applies to the court for a grant of letters of administration (with will annexed).

Letters probate: When a court confirms that the will is valid, the grant of probate is sometimes called “letters probate.”

Military will: A will made by a person of any age[14] while on active service in the armed forces. It may be signed without being witnessed. Proof may be required that the will-maker was entitled to execute the will in the manner, according to Rule 25-3(17).[15]

Minor: A person under the age of majority,[16] which is currently 19 in British Columbia. Note that a will can be valid in BC if it is made by a 16-year-old who is mentally capable of making a will, but a will made by someone younger than 16[17] is not valid (except if it is a military will).

Mirror wills: Wills made by two persons whose lives and assets are intertwined (usually spouses). One will leaves all the assets to the other, and vice versa. There is typically a clause describing what happens to the assets, and who is to be guardian of minor children, in the event that they die together.

Next-of-kin: The closest living relative. It becomes relevant in intestate succession. A will that leaves a gift to a “next of kin” will likely have problems because of the uncertainty of who the will-maker meant, and whether that person is still the intended recipient at the time of the will-maker’s death.

Nominee: A person who acts on behalf of the will-maker under a power of attorney or a representation agreement.[18]

Notice to Creditors: A notice published in the BC Gazette telling creditors to let you know if they have claims against the estate. Click here for more.

Notice of Dispute: A form to notify the court that a person (the “disputant”) opposes a grant (e.g., the disputant has reason to believe that the will is invalid or incomplete, or that the person applying is not the proper person to apply.

Official administrator: If there is no will naming an executor and no relative or friend of the deceased who is able to apply to administer the estate, the Public Guardian and Trustee will act.

Per capita at each generation and per stirpes: Literally, “per capita” means “by the head” and “per stirpes” means “by the foot.” These are different ways of dividing assets. When a parent leaves assets to children “per stirpes,” it means that each living child gets an equal share, but if one of those children is already deceased, then that child’s share is divided between his or her own children. When a parent leaves assets “per capita at each generation,” it means that each living child gets what would be an equal share, but if one or more children are already deceased when the will-maker dies, the entire amount that would have gone to those deceased children is divided equally (per capita) amongst all those deceased children’s surviving children.

For example, see the chart below showing distribution of a parent’s assets where 2 of 3 children have died before the parent:

Per Stirpes (Chart on Left) vs. Per Capita at each generation (Chart on right)

Perstirpes.png

Personal representative: The executor or administrator of an estate.

Probate: The court process to confirm that a will is valid. The court issues an order that is sometimes called a “grant of probate” or “letters probate.” Click here for more.

Proof in common form: Approval of a will by a registrar of the court where there are no irregularities with the will or apparent disputes over it. Click here for more.

Proof in solemn form: A proceeding used when there is a dispute (or potential dispute) as to a will’s validity. Click here for more.

Public Guardian and Trustee of British Columbia: The Public Guardian and Trustee[19] protects the interests of vulnerable British Columbians. The PGT provides guardianship and trust services, and their powers are set out in several statutes.[20] Their mandate is set out by law[21]:

  • Protect the legal and financial interests of children under the age of 19 years;
  • Protect the legal, financial and in some cases personal and health care interests of adults who require assistance in decision making; and
  • Administer the estates of deceased and missing persons.

Rectification: Correcting an error. A court may be called upon to “rectify” what appears to be an error in a will.

Renunciation: Means “refusal” and is used in the sense of a person who has the right to be executor giving up or renouncing that right.

Representation grant: An estate grant, or a grant of probate, or a grant of letters of administration, or an order resealing a grant.

Representative: Person designed to make decisions on behalf of a person who has executed a representation agreement[22] under the Representation Agreement Act.

Residuary beneficiary: A beneficiary who receives a gift from the estate residue.

Residue: The remaining assets of the estate after all the debts have been paid and the specific gifts have been distributed.

Revocation: Cancellation. A will that the will-maker decides no longer represents his or her wishes is revoked when the will-maker makes a new will.[23] The will-maker may file a wills notice revoking a prior will. An estate grant can be revoked[24] in some circumstances.

Safety deposit box: A locked box rented to store valuables in a vault at a financial institution (bank, credit union, trust company). It may contain the will.

Specific bequest: A gift of a particular amount of money or personal property described in a will.

Specific devise: A gift of a particular piece of real property described in a will.

Spousal home: A residence where the deceased person and his or her spouse ordinarily lived, as defined in WESA, s. 1. If the spousal home is not a gift in the will and the surviving spouse intends to purchase the home or continue living there (WESA, ss. 26-35), that spouse must notify the executor in Form P42[25] within 180 days of the grant of probate being issued (WESA, s. 27). (If there is a dispute over the spouse’s entitlement, you should seek legal advice.)

WESA, s. 1, defines “spousal home” as follows:

(a) a parcel of land, owned or owned in common by the deceased person and not leased to another person, that
(i) is shown as a separate taxable parcel on a taxation roll for the current year prepared under the Taxation (Rural Area) Act or on an assessment roll used for the levying of taxes in a municipality, and
(ii) has as improvements situated on it a building assessed and taxed in the current year as an improvement, in which the deceased person and his or her spouse were ordinarily resident,
(b) a share owned or owned in common by the deceased person in a corporation whose charter, as defined in section 1 (1) of the Business Corporations Act, provides that a building owned or operated by the corporation must be owned and operated exclusively for the benefit of shareholders in the corporation who are occupants of the building, if the value of the share is equivalent to the capital value of a suite owned by the corporation, in which suite the deceased person and his or her spouse were ordinarily resident and which was not leased to any other person,
(c) a manufactured home, as defined in the Manufactured Home Act, situated on land not owned by the owner of the manufactured home and in which the deceased person and his or her spouse were ordinarily resident, or
(d) a parcel of land on Nisga'a Lands or treaty lands that has as improvements situated on it a building in which the deceased person and his or her spouse were ordinarily resident,
(i) owned or owned in common by the deceased person and not leased to another person,
(ii) held or held in common by the deceased person by way of a right to possession under Nisga'a law and not leased to another person, or
(iii) held or held in common by the deceased person by way of an interest under the laws of a treaty first nation and not leased to another person;

Spouse: Various statutes define “spouse” for the purposes of that law. For estates law, “spouses” were married to each other at the date of death, or had been living together in a marriage-like relationship for a period of two or more years immediately prior to the date of death. However, persons may have ceased to be “spouses” by living apart, or if they agreed to or were ordered by a court to divide family assets in accordance with the [Link to http://canlii.ca/t/8q3k Family Law Act].[26]

WESA defines “spouse”:

2 (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and
(a) they were married to each other, or
(b) they had lived with each other in a marriage-like relationship for at least 2 years.
(2) Two persons cease being spouses of each other for the purposes of this Act if,
(a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act,[27] to arise, or
(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.
(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation,
(a) they begin to live together again and the primary purpose for doing so is to reconcile, and
(b) they continue to live together for one or more periods, totalling at least 90 days.
(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.

Succession: The order of entitlement to inherit. It usually arises where there is no will or where a gift under a will cannot be made to the beneficiary set out in the will, so the gift goes to the person whose is next in line to inherit. Click here for more.

Survivor: Literally, one who survives another. It often refers to one spouse after the passing of the other spouse, so there are terms like “ rules of survivorship” or “ survivor pensions.”

Testamentary trust: A trust created in a will, where the will specifies who will be the trustee, who will be the beneficiary, and what assets are set aside for the trust.

Will-maker: The person who makes a will. Some older language identifies a male will-maker as a “testator” and a female will-maker as a “testatrix.” Under the current WESA, any person who makes a will is called a “will-maker.”[28]

Will: A formal document describing how the writer’s assets are to be divided after the writer’s death. A will may have one or more codicils. To be valid, a will must follow some formal rules.

Withholding tax: If one of the beneficiaries is not a resident of Canada, you may need to retain withholding tax before distributing any gift to that non-resident beneficiary. Click here for more.

== References ==

  1. For a discussion of ademption, see Wood (Estate), Re, 2004 BCCA 556 [1]
  2. WESA, s. 37. [2]
  3. www.ag.gov.bc.ca [3]
  4. www.ag.gov.bc.ca [4]
  5. www.ag.gov.bc.ca [5]
  6. www.cra-arc.gc.ca [6]
  7. R.S.B.C. 1996, c. 349, s. 6 [7]
  8. Supreme Court of British Columbia [8]/
  9. https:www.provincialcourt.bc.ca/
  10. canlii.ca [9]
  11. canlii.ca [10]
  12. WESA, ss. 20-24 [11]
  13. WESA, s. 25 [12]
  14. WESA, s. 38 [13]
  15. canlii.ca [14]
  16. Age of Majority Act, R.S.B.C. 1996, c. 7. [15]
  17. WESA, s. 36 [16]
  18. WESA, s. 1 (definition of “nominee”) [17].
  19. www.trustee.bc.ca [18]
  20. http:www.trustee.bc.ca [19]
  21. Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383
  22. Representation Agreement Act, R.S.B.C. 1996, c. 405, s. 5 [Full Text: https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-405/latest/rsbc-1996-c-405.html].
  23. WESA, s. 55 [20].
  24. WESA, s. 141 [21].
  25. www.ag.gov.bc.ca [22]
  26. canlii.ca [23]
  27. canlii.ca [24]
  28. WESA, s. 1 (definition of “will-maker”).