Estate Law Considerations
Executors Proceed Cautiously
We last wrote to you about changes to BC Wills laws. Changes to our laws for processing Estates have also been made. The estate law overhaul doesn’t particularly require any action on your parts. A brief review of our take on today’s handling of estates follows…..
Property Transfer Tax – First Time Home Buyer’s Program
Property Transfer Tax is a provincial tax on the transfer of real estate. It is payable at 1% of the first $200,000 of the fair market value, and 2% on the amount over $200,000. The 2003 provincial budget included changes to the First Time Home Buyers’ Program, which provides a tax exemption from Property Transfer Tax for individuals buying their first home. Buyers who meet the following conditions will be eligible for the exemption.
– must be a Canadian citizen or permanent resident who has:
– lived in BC for one full year prior to the purchase, or
– filed two income tax returns as a BC resident within the last six years.
If the buyer is not a Canadian citizen or permanent resident at closing, but becomes one within one year of closing, the buyer can apply for a refund of the tax.
– must have never owned an interest in a principal residence anywhere in the world at any time.
– must occupy the property as their principal residence within 92 days of the date the property is registered in the buyer’s name, and must continue to reside in the property for the first year of ownership. If the buyer moves out prior to the one year anniversary, some or all of the tax may have to be re-paid
If the property is vacant land, the buyer must build and move into the home within one year of the date the property is registered in the buyer’s name, and must continue to reside in the property for the first year of ownership.
– value must not exceed $475,000. A proportional exemption is available for properties that have a value of up to $25,000 above this threshold (ie. up to $500,000).
– in the case of vacant land, the value of the land plus the total construction costs must not exceed the amounts stated above.
– must be classified as residential. If some of the buildings on the property are not classified as residential, only a partial exemption is available.
– must not exceed 0.5 hectares (1.24 acres) in size. If it does, a partial exemption is available.
If you have any questions about the First Time Home Buyers’ Program, please call us.
Wills Laws Overhauled
Changes May Affect You
This past March, British Columbia implemented major changes to its wills and estates laws. The new Wills Estates and Succession Act (“WESA”) consolidates four older acts, and modernizes the law regarding Wills and the administration of estates for BC residents. These changes may seem, on first blush, to be of little interest. But they are substantial, and we are sending this newsletter to our clients to let you know that we are concerned that some of you may need to update your Wills……
Read more by clicking here to download the PDF Newsletter
THINGS YOU SHOULD KNOW ABOUT PURCHASING YOUR FIRST HOME
Bob & Mary Buy Their First House
Bob and Mary had been married six years when Bob’s 35th birthday proved to be a milestone in their life together. Their daughter was two years old and both were progressing as software engineers. (They’d met at a conference in Hong Kong where Bob had been working.) Now they were about to buy their ﬁrst house. Some anxiety about the home purchase did arise, but Beacon Law Centre’s Kelvin Scheuer helped to deal with that.
–>> Read more by clicking here to download the PDF Newsletter
Home Buyers – Beware of Broken Promises
One of the most exciting decisions we make involves the purchase of a new home. While the experience can be exhilarating, finding the perfect home can be challenging even for a sophisticated buyer. We find a home we like, but often with a few small problems. For example, the landscaping is not quite finished, or there is a large pile of rubble that should be removed from the yard. Do we go ahead, or not?
To induce a buyer to sign a Contract of Purchase and Sale, a seller may be prepared to take care of minor problems with the property. A clause will be added to the Contract of Purchase and Sale indicating that before the completion date (the day the Buyer must pay the purchase price), the seller will correct the problem. In this situation, the buyer needs to beware of his or her legal rights or responsibilities if the seller does not fulfill the promise.
The standard form of Contract of Purchase and Sale provides that there are no promises or agreements other than those written in the Contract of Purchase and Sale, but that those promises and agreements that are written in the Contract of Purchase and Sale will survive the completion of the sale. In the case of a seller who breaks a promise to fix something, the second part of this clause is helpful for a buyer. The clause means the seller is legally bound to correct the problem even after the completion date. If the seller does not, the buyer can sue for damages in Small Claims Court or, if the loss exceeds $25,000, in Supreme Court. But court proceedings are time consuming, slow, and costly. Even if the buyer gets a judgment against the seller, it may be difficult to recover the money.
To avoid the need to take a seller to court, buyers should have their realtor include a clause in the Contract of Purchase and Sale that allows the buyer:
- to inspect the property before the completion date to make sure that the problem has been corrected, and
- to hold back an amount equal to the cost to fix the problem if the seller has not fixed it by the completion date.
A buyer is generally not entitled to cancel the Contract of Purchase of Sale if a seller breaks a promise to correct a problem and, unless the Contract contains such a remedy, a buyer cannot demand that the purchase price be reduced, or that a sum of money be held back from the seller.
If you are buying or selling real estate and have questions about your contract, give us a call.
NEW TRUSTS CREATE NEW ESTATE PLANNING OPPORTUNITIES
If you are over 65, proposed amendments to the Income Tax Act permit you to use two new types of inter vivos trusts to achieve your estate planning goals. (An inter vivos trust is a trust created during your lifetime, as opposed to a testamentary trust, which takes effect upon death.)
A trust is a legal relationship and, for tax purposes, is a separate legal entity. When you transfer property to a trust, you no longer legally own it, even though you can continue to control and benefit from it. Inter vivos trusts have always been available as a tool for estate planning. However, because of the tax rules that apply to inter vivos trusts, they have not been widely used.
Those rules provided that a transfer of assets to an inter vivos trust (except a “spousal trust”) was, for tax purposes, a disposition of the assets at their fair market value, which could result in capital gains tax. As a result, inter vivos trusts have normally been created only in the following situations:
- to create an inter vivos “spousal trust”, where the spouse is entitled to all of the income, and is the only person who can receive any capital, of the trust during the spouse’s lifetime;
- to create an inter vivos trust with assets that do not trigger a capital gain (such as cash, unappreciated stocks or a principal residence)
- to create an inter vivos trust to acquire future growth shares of a corporation as part of an estate freeze transaction.
The proposed amendments to the Income Tax Act create two new inter vivos trusts, the Alter Ego (meaning “other self”) Trust and the Joint Spousal Trust. These trusts enjoy the same benefits of other inter vivos trusts, with the added advantage that transferring assets to these trusts will not trigger any liability for income tax.
To create an Alter Ego Trust, you must meet the following conditions:
- you must be over the age of 65
- you must be entitled to receive all of the income of the trust before your death
- no one else can receive the capital of the trust before your death.
The Joint Spousal Trust has the same requirements except that you and your spouse must be entitled to all of the income of the trust, and no one other than you and your spouse can receive any of the capital while either of you are still living.
If you transfer assets to one of these new trusts, you will no longer legally own them (the trust will), so they will not form part of your estate when you die. During your lifetime you can continue to control the assets as the trustee of the trust, or you can name other trustees to manage the assets for you. You can name beneficiaries who will receive the assets after your death. The trust can be changed or even revoked as long as you have the capacity to make those decisions.
The use of these trusts can be advantageous for many reasons:
1) Probate Avoidance
A trust can avoid probate and probate fees. Because the trust owns the assets, they are not part of your estate when you die. Probate, and the payment of probate taxes, applies only to assets that are part of your estate (click here for more information about avoiding probate fees).
2) Asset Protection
The Wills Variation Act allows your spouse or children to apply to the court to vary your Will if they have not been adequately provided for. Because assets in a trust are not part of your estate, the use of a trust can avoid these claims. This could be useful if you wish to treat your children differently, or if you are in a second marriage and wish to provide for your spouse while also preserving the assets for your children from a previous marriage.
For the same reasons, the use of a trust can potentially protect assets from claims by creditors.
3) Centralized Ownership and Management
While you will likely want to control the assets in the trust, you can name other trustees, such as family members or friends, to manage the assets for you. For example, the trust could provide that if you become incapable, your spouse or another trusted family member would act as trustee in your place. As a result, you will not require a power of attorney for the assets in the trust.
If your Will is probated, it will become a public document, along with the value of all of the assets that formed your estate. Certain people are entitled by law to receive a copy of your Will after your death. A trust is a private document and can be used to keep your affairs confidential.
To avoid probate and protect assets from claims, many people are giving assets away before they die or putting assets into joint tenancy. This can result in many unintended consequences, including taxes. The Alter Ego Trust and Joint Spousal Trust can help you avoid probate and claims against your estate without the problems that can arise by giving away your assets or putting them into joint tenancy.
So should everyone over age 65 create an Alter Ego or Joint Spousal Trust? Definitely not. Although they have many advantages, other factors must also be considered, including:
- the transfer of trust assets to other beneficiaries after your death may not qualify as a testamentary trust, so the ability to save taxes using testamentary trusts for income-splitting may not be available
- for tax purposes, charitable bequests from the trust will not be treated as favourably as charitable bequests under a Will
- transferring real estate into the trust may require payment of provincial Property Transfer Tax
- a trust costs more than a Will, and the preparation and filing of an annual tax return for the trust will be an extra cost
- a Will may still be required if any assets are not transferred to the trust or if assets are acquired after the trust was created
- it is more difficult to change a trust than a Will.
While these new trusts are not for everyone over 65, they have considerable potential as an estate-planning tool. For a personal review of your estate plan, including whether a trust might be right for you, call us to arrange a consultation (656-3280).
LOOKING AFTER YOUR LITTLE ONES – Appointing a Guardian
One of the most difficult decisions for parents is choosing a guardian for their children. Most of us do not like to think about our death, especially if we have young children who would be left behind.
Many parents don’t choose a guardian because they don’t want to think about the possibility of dying before their children are grown. Others put off the decision because they can’t agree on who the guardian should be. In doing so, they may be leaving open the possibility of costly custody battles and further trauma to their children.
In B.C., with some exceptions discussed below, a parent can appoint a guardian for children under 19 years in a will. For parents with young children, this is one of the most important reasons for making a will.
There are two types of guardians:
- the guardian of the person of the child – who has custody of the child and is responsible for the child’s health, education and upbringing
- the guardian of the estate of the child – who manages the assets of the child
Often the guardian of the person and of the estate is the same person. However, many parents appoint a separate trustee in their will (who is usually also the executor of the will) to manage and disburse the child’s share of the estate.
The trustee should be someone with common sense and sound judgment. Being a financial wizard is not required, since the trustee can hire a professional investment advisor if necessary. The guardian of the person of the child should be someone who shares your values and ideals.
Not every parent is able to appoint a guardian. In order to appoint a guardian upon death, a parent must have been the child’s guardian while the parent was living. The law about guardianship is explained in the following scenarios:
A mother and father are joint guardians for so long as they live together. On the death of one parent, the surviving parent becomes the sole guardian. On the death of the surviving parent, the guardian will be the person(s) appointed by the surviving parent.
Parents apart but married or previously married
If a mother and father are or were married to each other but are living separate and apart, they are joint guardians of the estate of the child, but only the parent with whom the child resides is guardian of the person of the child.
As a result, if the custodial parent dies first, the guardian of the person of the child will be the person appointed in the custodial parent’s will. The surviving parent will become the sole guardian of the estate of the child, but will not be the guardian of the person of the child unless appointed by the custodial parent.
In blended families, where children of different parents are living under the same roof, the death of one of the parents in the blended family may result in an unexpected, but forced, separation of the children if guardianship appointments were not updated.
If a mother and father are divorced, the parent granted custody in the divorce proceeding is the sole guardian, unless the court otherwise orders (generally the court will order joint guardianship).
Parents apart and never married
If a mother and father were never married and are living separate and apart, but previously lived together with the child, they are joint guardians of the estate of the child but the custodial parent is the sole guardian of the person of the child, as above.
Parents never together
If a mother and father never lived together with the child, and were not married during the child’s life or 10 months before the child’s birth, the mother is the sole guardian unless the court otherwise orders.
Of course, each of these scenarios is subject to what the court may order, based on the best interests of the child. In addition, in some cases, parents may make a written agreement providing that they are joint guardians or that one of them is the sole guardian.
If a child has no guardian, or the person appointed under a will is unable or refuses to act as guardian, the Public Guardian and Trustee is the guardian of the estate of the child, and the Director under the Child, Family and Community Service Act is the guardian of the person of the child, until a court otherwise orders. For this reason, it may be a good idea to appoint an alternate guardian in case your first choice is not able to act.
If you have been putting off the appointment of a guardian for your children, please use this information to get your affairs in order. We would be happy to provide further guidance.
Thanks to the adult guardianship legislation that became law on February 28, 2000, “living wills” are now legally valid in BC. A living will is a written statement that expresses your wishes regarding medical treatment and personal care in case you are unable to express your wishes at the relevant time. Living wills are also referred to as advance directives, health care authorizations or declarations of belief.
A living will specifies the treatments that should or should not be given in specified circumstances. For example, many living wills provide that “heroic measures”, such as cardiopulmonary resuscitation (CPR), should not be used to prolong life if the person suffers from a severe irreversible condition. However, it may direct that medication be administered to alleviate suffering in those circumstances.
Living wills can prevent conflict and guilt among family members. If family members ask the doctors to do “everything” to keep a loved one alive and that person dies, the family may feel guilt for putting the person through needless tests and treatments. On the other hand, if they let their loved one “die with dignity”, they may feel later that they should have done more.
Conflict can also arise if family members cannot agree. Children who have been out of contact for years may return and want the doctors to do “everything” to try to bring a parent back so they can make peace. Other family members who remained in close contact are more likely to accept the person’s death, and want only palliative care for the parent. Further complications can arise when children from divorced marriages resent stepparents or common law spouses from making decisions. These conflicts can leave lasting bitterness.
If you have stated your wishes clearly in a living will, your doctor and family won’t have to second-guess what kind of treatment you would want. You will receive the treatment you want and your family will be “off the hook”.
Under the new Representation Agreement Act, you may make a Representation Agreement authorizing a representative to give consent or refuse consent to specified kinds of health care, including life-supporting care. This authorization is valid only if you consult with a lawyer before making the Representation Agreement, and the lawyer completes a certificate to that effect. (Representation Agreements replace enduring powers of attorney in B.C.)
Although a Representation Agreement is the most effective form of living will, other less formal methods of leaving directions are available which still have legal effect. A living will that is not a Representation Agreement is given effect under the new (and unfortunately named) Health Care (Consent) and Care Facility (Admission) Act. Under this Act, if a patient is incapable of giving or refusing consent to medical treatment, the health care provider is to go to the highest ranking of the following people who are available and willing to decide:
- the patient’s court appointed guardian (committee), if any, or representative under a Representation Agreement, if any
- the patient’s spouse (including common law or same sex spouse)
- adult children
- a parent
- a sibling
- anyone else related by birth or adoption
- if no one else is available, someone authorized by the Public Guardian and Trustee.
The person making the decision will be bound to comply with any wishes expressed by the patient while the patient was still capable. Accordingly, a living will that is not a Representation Agreement can still be binding (although it won’t authorize who can make the decision for the patient – that can only be done in a Representation Agreement). If no wishes are expressed, the person must decide on the basis of the patient’s known beliefs and values. If the patient’s beliefs and values are not known, then the decision must be made on the basis of the best interests of the patient.
In the past we recommended that our clients plan for the possibility of disability by considering an enduring power of attorney. A Representation Agreement is an even more effective tool, as it gives you the ability to include legally valid instructions for your future medical treatment and health care. The ability to make these decisions is long overdue in B.C. For more information about living wills and Representation Agreements, please contact us.
Homeowner Protection Act – Rules for Builders
In response to the leaky condo crisis, the B.C. government passed a new law called the Homeowner Protection Act. The Homeowner Protection Act creates the Homeowner Protection Office, and requires compulsory licensing for builders and mandatory warranty coverage on new homes. (In addition, recent regulations under the Act introduced licensing and warranty requirements for building envelope repairs – click here for more information.)
All residential builders (including developers and general contractors) must be licensed by the Homeowner Protection Office. Licenses are for one year only and must be renewed annually. The Homeowner Protection Office has the authority to monitor builders and cancel their licenses.
New Home Warranties
To obtain a building permit, builders must provide proof of third-party warranty coverage for the home. The warranty provider must be licensed with the government. Warranties must provide the following minimum coverage:
- 2 years for materials and labour
- 5 years for building envelope (including water penetration)
- 10 years for structural defects
The Act sets out special rules for owner-built homes. An owner-builder is a person who builds a single, detached home for their own personal use, not more than once in any 18 month period. An owner-builder does not have to be licensed or provide a third-party warranty on their home. Instead, they must file an Owner-Builder Declaration and Disclosure Notice with their building permit application. If an owner-builder sells a home within 10 years of completion, they must give the buyer a copy of the Owner Builder Declaration and Disclosure Notice. The Disclosure Notice alerts buyers to the fact that the home is not protected by a third-party warranty.
If you have any questions about the requirements under the Homeowner Protection Act, please contact us, or visit the Homeowner Protection Office.