F.A.Q.

The law does not say that you have to make a Will. However, making a valid Will is the only way to make your wishes known and to ensure that the things you own go to the people you want to have them.

If you die without a Will, the law sets out who will inherit your Estate. In addition, the Court will appoint someone to deal with your Estate (an “Administrator”) and appoint someone as legal guardian of your minor children. Making a valid Will gives YOU the opportunity to make these choices.

To prepare for making a will you should make a list of the following:

• Your legal name (any aliases) and address
• Full name and address of whom you wish to appoint as your executor
• Full name and address of whom you wish to appoint as an alternate executor (should your first choice be unable to act)
• A brief description of your assets
• A detailed description of any items or specific sums of money you wish to leave to beneficiaries
• How you want to distribute the balance of your estate (or the residue of your estate) after items or money has been given up
• Full names and addresses of all beneficiaries
• If a beneficiary should predecease you, who should receive his or her share
• If you have children under the age of 19, the name and address of the person(s) you wish to designate as guardian
• Information on any burial or cremation arrangements you may have

Your executor is responsible for administering your estate, arranging your funeral, proving the will, liquidating the estate, paying debts, distributing assets as the will directs and performing many other duties.

Choosing an executor is a very weighty decision. It is important that your executor be able to keep proper records and be available for an extended period of time to administer your estate. You should be sure to discuss this responsibility with your potential executor as it is a very time consuming job.

An executor is entitled to be paid up to 5% of the gross value of the estate depending on the complexity of the estate, but you can stipulate in advance what the fee should be. An independent executor can often resolve conflicts among siblings or disappointed relatives. Some people choose an independent person such as a notary, accountant or a trust company if they do not have any family close by or if they suspect there may be a conflict of interest.

There are many situations in which a person might choose a professional executor. Usually the reason stems from an existing or potential conflict between siblings. Other considerations would be stress at a time of grief, time constraints, lack of business acumen, or that the proposed executor does not live in British Columbia. Every province has its own Court rules for the administration of an estate. A person from outside BC may have to hire a professional in any event to prepare the documentation. There are many responsibilities that the executor assumes, including the personal liability for his or her actions.

Most BC Notaries are trained in estate administration and are well suited to the work of an Executor. They are used to detail oriented work, working in a timely manner, and taking responsibility. BC Notaries have mediation training and will be able to work through potential problems with disappointed or troublesome beneficiaries.

Ask your Notary for an estimate of fees to act as your executor. The notary will analyze the complexity of your estate and determine how simple, lengthy, or difficult administration might be. Once you reach an agreement on the fee, the Notary will assist you in preparing the necessary documents in advance to assure your estate is taken care of efficiently and professionally. This will take a great deal of stress away from your loved ones at a time when they will be suffering a significant loss, and give them a trusted, friendly individual with whom to communicate during the administration of your estate.

You have probably heard a lot about these because of the new Power of Attorney Act which came into effect on September 1, 2011. You do not have to make an EPOA. However, it is recommended because of its flexibility. Unlike a General Power of Attorney, which ends if you become incapable, an EPOA is effective while you are still mentally capable but it also continues to be effective once you are no longer capable of making your own decisions. It does not stop you from managing your own affairs, as long as you are capable.

The new Power of Attorney Act brought about significant changes with regard to EPOAs. This was partly in response to widespread concerns about abuse using Powers of Attorney. The new legislation helps to combat this abuse by raising the bar of required mental capacity to make an EPOA (see Who can make a Power of Attorney below) and broadening the duties of the Attorney to include keeping accurate records, and producing them for inspection and copying at the request of the person who appointed him or her.

The new EPOA can also contain more detailed clauses which address:

• Compensation for your Attorney’s time.
• Charitable and family gifting or loans your Attorney can make on your behalf.
• Permission of your Attorney to disperse your assets or property prior to your death.

If you have a Power of Attorney which was signed before September 1, 2011, it is generally still valid. However, it would be a good idea to contact my office so that I can review it to ensure that the information is still accurate, that it is still valid and that it will do what you need it to do.

There are many reasons you may want to have a Power of Attorney in place, such as:

• If you are physically unable to look after your own affairs
• If you are going to be out of the country and you need someone to look after your affairs while you are away
• If you suddenly become mentally incapable due to illness, disease or accident
• If you work in an environment where accidents frequently occur or you engage in dangerous recreational hobbies or sports

You might think that only elderly people need to have a Power of Attorney. However, it is just as important for younger people to put incapacity planning into place in case of events such as a brain injury due to motor vehicle or recreational accident or a stroke. If a tragedy such as this strikes you and you do not have an EPOA in place, the courts will have to decide who can make legal and financial decisions on your behalf. Nobody, not even your spouse, has legal authority over your financial or legal affairs. Your spouse would have to apply to the court to become the Committee of your Estate. This is a lengthy process which costs thousands of dollars.

You can make a Power of Attorney if you are 19 years of age or older, and are capable of understanding the nature and consequences of making the document. The law presumes you are capable unless it is shown that you are not. The test for capacity, which is now codified in section 12 of the new Power of Attorney Act, requires you to understand all of the following:

• The property you own and its approximate value
• The obligations you owe to your dependants
• The Attorney will be able, on your behalf, to do anything in respect to legal and financial affairs that you could do yourself if capable, except make a Will, subject to the restrictions set out in the document
• Unless the Attorney manages your business and property prudently, it could decrease in value
• The Attorney might abuse his or her authority
• You may, if capable, revoke the Power of Attorney

While it is not uncommon for a Notary to act for both the Buyer and the Seller in a straightforward transaction, he or she must make a disclosure to all parties of that dual role and, in the rare event a conflict in the Notary’s duty to either party arises, will remove himself or herself and not act for either party. In all cases, the parties receive legal advice and understand the nature and effect of the transaction and the documents before signing.

There are certain types of transactions where a Notary is not permitted to act for both parties, such as the sale of a business or when the Seller is financing a portion of the purchase price. If you have questions about your transaction, please contact my office for advice.

Signing the Contract is the first step in the conveyance process. Once all subjects have been removed and the Contract is firm and binding, your realtor (and your banker or mortgage broker if you are getting a mortgage) will ask you to choose a legal representative to act for you. Once you have named that person, a copy of the Contract and instructions for the preparation of the mortgage security documents (if you are financing the purchase) will be sent to his or her office.

I would be very happy to help guide you through this process. If you choose me as your legal representative, please call my office to let us know! We will take some information and open your file. An appointment to sign the documents will be made for a date which is usually 3 or 4 business days prior to the closing date. From that point on, we will be there to answer any questions and address any concerns you may have. The purchase, sale or mortgage of a home can be a very confusing process. While it is a very exciting time in your life, we understand that it can also be stressful. We are committed to taking the stress out of the experience. We want to make sure that you are fully informed throughout, that you understand every detail and that your best interests are protected at all times.

Signing the Mortgage Commitment document with your lender is the first step in the process. That document is the legal contract you have made with the lender to repay the debt. The next step is to secure the debt by registering a charge against the property at the Land Title Office. Your lender will not release the money to you, or activate your line of credit, until evidence that the debt is secured has been provided.

I would be happy to help you with this process. If you have chosen me as your legal representative, please call my office to let us know! We will take some information and open your file. Instructions to prepare the documentation will be forwarded to us once you advise your lender that you will be using our services. An appointment to sign the documents will be made for a date which is usually 2 or 3 business days prior to the funding date.

Generally it is best if we have a least a week’s notice to complete your transaction. We will be able to provide you with much better service if we have adequate notice. A lot of information must be gathered and many documents must be drafted and signed by all of the parties involved before a transaction can be completed. Mistakes can easily be made when this complicated process is completed in a hurry. If you have any questions about timeline, please do not hesitate to call us for advice.

Completion Date is the date on which the Buyer becomes the registered owner of the Property and the Seller receives the sale proceeds. This is also the date on which the Buyer becomes responsible to insure the Property. Possession Date is the date on which the Seller must give possession of the Property to the Buyer. It is the day you get the keys to your new home! Adjustment Date is the date on which the Buyer becomes responsible for items to be adjusted between the parties, such as property taxes and strata fees. These three dates do not have to be the same. In fact, Possession Date and Adjustment Date are often a day or more after Completion Date on a Contract.

Two or more people can own property as Joint Tenants or as Tenants in Common. Your Notary will ask you to choose one of those two forms of co-ownership when you are transferring a property into your names. So what is the difference?

In a joint tenancy, each co-owner must own an equal interest (i.e., 50/50) in the property. The essential feature of joint tenancy is the right of survivorship. It means that when one joint tenant dies, his or her interest in the property automatically ceases to exist at the instant of his death and vests unto the other joint tenant(s). Therefore, joint tenants cannot leave their interests to anyone in their Wills. This type of ownership is the most common for married or common law couples.

In a tenancy in common, each co-owner may have unequal interests (i.e., 30/70). As a tenant in common, there is no right of survivorship and therefore your interest in the property does not transfer to the other co-owner(s) upon your death. Rather, it is distributed according to your Will. Therefore it is very important to have your estate plan in order. This type of ownership is the most common with business or investment partners.

No. Only the legal, registered owner of a property can consent to the registration of a charge against it to secure a debt. For example, if you are married but your house is registered in your name only, your spouse cannot sign as a borrower on a mortgage registered against that property. An option in this scenario would be for the non-owning spouse to sign the mortgage as a guarantor (also known as a “co-signer”). This means that he or she is responsible for re-paying the debt if the borrower defaults on the mortgage payments.

Property Transfer Tax is a land registration tax. It must be paid when an application for a taxable transaction is made at any Land Title Office in British Columbia to register changes to a certificate of title. Property Transfer Tax is payable on the fair market value of the property being transferred. More information on taxable interests is available here.

Fair market value is the price that would be paid by a willing purchaser to a willing seller in the open market on the date of registration. An open market is where the property is offered for sale so that anyone likely to be interested in purchasing it may make an offer. For example, the seller lists the property with a realtor or advertises it for sale. If your tax return is reviewed by this office, you may be asked to provide evidence of how you knew the property was for sale.

In most open market transactions, the purchase price is the fair market value, as long as the transfer is registered within a few months after the sales contract is signed. In other instances, such as where no money changes hands or the transfer did not take place in the open market, the fair market value must be determined by other means, such as an independent appraisal or by reference to the most relevant BC Assessment value.

Generally BC Assessment property assessments reflect fair market value as at July 1 of the previous year. For example, assessed values for the 2011 tax year are based on what the property would have sold for in the open market as at July 1, 2010. This means that the assessed value may not reflect the current market value of your property at the date of registration. Because of this and the fact that property markets can change rapidly, you may need a more recent valuation, such as an independent appraisal, of what the property is worth at the time of registration.

There are other situations when the BC Assessment value does not reflect the current fair market value including when the land is classified as farm land by BC Assessment or there have been changes affecting fair market value since the BC Assessment value was determined i.e. trends in a local area, addition of services, partial/new construction or rezoning.

Under the Interpretation Act, land means any interest in land, including any right, title or estate in it of any tenure, with buildings and houses, unless there are words to exclude buildings and houses or to restrict the meaning. Because there is no limiting definition in the Property Transfer Tax Act, tax is payable on the fair market value of the land, plus all improvements on that land at the time of registration.

The following are examples of common improvements to land that are included in the fair market value of the property: houses; manufactured homes or modular homes; garages; sheds or other outbuildings; paving, such as driveways; utilities, such as sewer; and timber.

Further information about the application of property transfer tax to the registration of manufactured, mobile, or modular homes can be found under Frequently Asked Questions.

You are required to pay Property Transfer Tax unless you qualify for an exemption.

Introduced in 1994, the First Time Home Buyers’ Program is designed to help British Columbians purchase their first home. Under the program, eligible purchasers can claim an exemption from Property Transfer Tax if the fair market value of the home is less than the threshold amount.

Thresholds

For registrations on, or after, February 22. 2017, the fair market value threshold for eligible residential property is $500,000. A proportional exemption is provided for eligible residences with a fair market value of up to $25,000 above the threshold (i.e. up to $525,000). Click here for examples of Property Transfer Tax proportional exemption based on 100% interest transferring where the whole transaction is eligible and where only 50% is eligible.

Other Criteria

To qualify for the First Time Home Buyers’ exemption you must meet all of the initial eligibility criteria. To retain the exemption, there are also requirements which must be met in the year following the transfer. For a general overview of the eligibility criteria, please see the brochure, Property Transfer Tax and the First Time Home Buyers’ Program.

Your notary will claim the exemption for you by filing a First Time Home Buyers’ Property Transfer Tax Return and the appropriate Land Title forms at the Land Title Office when you purchase your property.

Refunds

If a purchaser did not apply for the exemption when the transfer was originally registered at the Land Title office, but met all the FTHB eligibility criteria at that time, the purchaser may apply for a refund within the first 18 months from the date of the original registration. Please see How to File for more information.

The purpose of the home owner grant is to help reduce the amount of residential property tax British Columbians pay. The home owner grant applies to taxes paid by British Columbians to their municipality or to the Surveyor of Taxes for rural areas. The grant is available to Canadian citizens or holder of permanent residency status in Canada, who live in British Columbia, and he or she must occupy the home as his/her principal residence.

The home owner grant program includes the following types of grants:

• Basic
• Senior
• Veteran
• Person with disabilities
• Living with spouse or relative with disabilities
• Spouse or relative of deceased owner
• Retroactive
• Multiple

For 2018, the home owner grant will be reduced on higher-valued properties by $5 for each $1,000 of assessed value over $1.65 million. In Metro Vancouver, Capital Region and the Fraser Valley Regional District, the basic grant fully phases out at $1,764,000, and the higher grant at $1,819,000. In northern and rural areas, the basic grant fully phases out at $1,804,000 and the higher grant at $1,859,000.

The grant must be applied for each year. If you live in an incorporated municipality, you must apply to your municipal tax collector. For rural areas, you must apply to the Surveyor of Taxes office or to a local Service BC Centre. Please see How to Apply for more information.

First Nation property taxation

The home owner grant does not apply to property taxes levied under First Nation taxation law; however, most First Nations that levy property taxes provide a home owner grant program of their own.