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Frequently Asked Questions

Can Anyone Be a Director?

Yes, with a few caveats. To be a director, a person must be over the age of 18 and capable of handling their own affairs. They must also consent to being a director. A director for a BC company does not need to live in Canada.

A person cannot be a director if:

  • They have been convicted (in or outside of BC) of a criminal offence involving fraud or in connection with the promotion, formation, or management of a corporation.
  • They are an undischarged bankrupt (i.e. they have filed for bankruptcy but have not yet been discharged from their debt).
  • They are a corporation or other non-human legal entity.
Can I Choose Any Name I Want for My Company?

Yes, but the name must be approved by the BC Registrar of Companies. When you start the incorporation process, you may submit up to three names at a time to be reviewed. Each name must include a distinctive and a descriptive element. For example, “White Rock Shoe Store, Ltd.” contains both a distinctive (White Rock) and descriptive (Shoe Store) element, and is therefore more likely to be approved than “Shoe Store, Ltd.”.

If you don’t want to use a descriptive name, you can use an incorporation number. For example, “12345 BC, Ltd.” would be an acceptable corporation name.

Do I Need Shareholders?

Yes. Every corporation must have at least one shareholder.

My Name Was Approved, What’s Next?

You have 45 days from the date your name is approved to incorporate your new company. If you fail to incorporate within this time frame, your name reservation will lapse, at which point you must either renew it or restart the approval process.

What Is a Corporation?

A corporation is a separate legal entity created under the Business Corporations Act of British Columbia. A corporation has many of the same rights as an individual: it can enter into contracts, purchase and sell property, and borrow money from banks or other financial institutions.

What Is a Shareholder?

A shareholder is a person or other legal entity (such as a partnership, trust, or other corporation) that owns a share or shares in a company. A shareholder is entitled to certain rights in the company, such as the right to vote, or, depending on the type of shares they hold, the right to receive dividends.

What Is the Difference Between a Shareholder and a Director?

A shareholder owns shares in a company and is therefore an owner. A director is elected by the shareholders to supervise and manage the business and affairs of the corporation. In many small businesses, an individual will be both a shareholder and a director.

Why Incorporate?

There are many reasons to incorporate. As a separate legal entity, a company will in most circumstances provide its shareholders with limited liability protection should the corporation become liable to its creditors. By incorporating, you may also be able to take advantage of certain tax efficiencies that individuals do not have available to them.

A corporation will also continue to exist until it is dissolved, wound up, or amalgamated with another corporation. This can be useful for estate planning, as incorporating enables you to pass on your business after you die.

What is the difference between a Will, Power of Attorney, and a Representation Agreement?

Generally speaking, the key difference is in when these documents take effect.

A will is a testamentary document, meaning it takes effect on the death of the willmaker. Until the willmaker’s death, it has no effect.

Powers of attorney and representation agreements are documents we often refer to as “life tools”.

A power of attorney is a document by which you can appoint a person to manage your financial affairs immediately, and/or if you become severely ill or incapacitated. A representation agreement is a document by which you can appoint a person to advocate on your behalf in matters related to health and personal care.

These “life tools” can be drafted in a number of different ways and it is our job to help prepare them in a manner that best meets your needs.

Where should I keep my original will?

An original will must be kept somewhere safe and accessible. A secure place in your home or a safety deposit box at your bank are generally good choices. The most important thing is that both you and your executor know where the original will is.

I don’t have a will, how do I start the process?

Contact our office. We will send you a series of intake documents to fill out. Part of the intake documents involves you providing us with details of the people in your world, what you have, and how you would like it to be distributed after your death.

It is very important that you share detailed information. As lawyers, it is our job to take that information and work with you to create a document that accurately represents your wishes. When you share your information with us, it is kept secure under solicitor-client privilege. If we are not provided full details, we are unable to ensure that your estate plan will “work” and meet your objectives.

Do I need a will?

In general, yes.

There are rare circumstances where dying intestate (that is, without a will) may be a deliberate choice. But in the vast majority of cases, having a will makes things much easier for surviving family and loved ones.

How much will it cost?

The cost to draft a will and related documents varies depending on the complexity of your estate plan and the level of legal expertise you require. We cannot provide you a direct quote until we fully understand your situation.

When you come to us to have your estate plan prepared, you will be working with a team of lawyers and legal assistants. Whatever your situation, we will make sure that your documents land on the right desk. If your will is straightforward, we can assign it to a junior lawyer with lower fees. If your situation is more complex and you are working with our most senior lawyers, the cost will be higher.

Do you prepare Powers of Attorney and Representation Agreement?

Yes.

We have extensive experience with all types of powers of attorney and representation agreements.

I have an adult child with a disability. Can you help?

Yes.

If you have a beneficiary who is, or is likely to be, on government assistance when they reach adulthood, it is very important to draft trusts in your will carefully so as to avoid prejudicing a beneficiary’s entitlement to receiving continued government assistance.

We have clients referred to us through the PLAN Institute, a BC non-profit organization that provides education and assistance for people with disabilities and their families.

It is important to appreciate that only lawyers are permitted to draft trusts into wills. Notaries are not permitted to draft trusts.

Can you review my current will/estate planning documents?

Yes.

We always recommend that new clients bring in existing documents, to determine if anything needs to be updated or revised, and how to proceed.

Please note that we charge our standard hourly rates for reviewing your documents, and these fees are in place even if we find everything in order, or you decide not to proceed.

How long of a process is it to prepare a will?

The amount of time needed to prepare a will is primarily driven by you, the client.

We can prepare a will in a matter of hours if there is a need, provided that the client is forthcoming with the necessary facts and documentation (and/or is willing to pay additional fees to expedite the process).

In most instances, wills take a few weeks to prepare, however, the process can take months if the client takes that amount of time to locate and deliver information and to make decisions as to how to distribute their assets.

What is a Trust?

A trust is a relationship between the person who settles the trust (the settlor or willmaker), the trustee or executor, and the beneficiary(s).

The settlor of the trust contributes assets to the trust and to the trustee, who holds those assets until the identified time at which the beneficiaries are able to receive them. As a settlor, you can have trusts established while you are alive, or trusts established as a consequence of death.

What is an Estate?

An estate is essentially a form of a trust in which an individual’s assets pass to an executor upon the individual’s death. An estate is managed by a personal representative, either someone appointed in the deceased’s will, or an administrator appointed by a court.

What is Probate?

Probate (also known as a grant of probate) is a document from the BC Supreme Court that confirms the validity of a will and appointment of the executor.

A will can be valid without a grant of probate, but probate gives an institution (such as a bank or land title office) legal comfort to give the assets of the deceased to the executor. This means that some assets cannot be distributed or sold until the grant of probate is received.

My parent died, what do I need to do?

The first step is to find the will, and then locate the executor and confirm the executor is willing to act. If you are an executor, contact our office, and we will guide you through the next steps.

If I die without a will, does the government take all my money?

No.

BC legislation sets out a priority list of who has the right to apply to court to be appointed as your administrator in the event that you die without a will. The legislation also provides who is entitled to your estate.

For example, if you have a surviving spouse but no children, everything goes to your spouse. If you have a spouse and children, the spouse receives a preferential share and the balance is distributed 50 percent to the spouse and 50% to the children.

My parents left me out of their will. What can I do?

You can commence a legal action to challenge the will and ask the court to vary it. Wills variation claims are available only to biological or legally adopted children of the willmaker. Contact our office for more information.

It is important to note that you can only start this process after your parent has died. The will does not take effect until after the willmaker dies, so if the person leaving you out of their will is still living, we cannot do anything from a legal standpoint.

How long does it take to get a grant of probate?

If you are organized and are able to provide the necessary information and file right away, it can take as little as 10-12 weeks. However, this can vary depending on how busy the probate registry is at the time.

I can’t find my parent’s original will. What do I do?

If you cannot find the original will, the next step is to do a wills search with the BC Vital Statistics Agency. It is a good idea to contact a lawyer at this stage. We can assist you with a search. If you still cannot find the original will, there are also certain court applications that can be made with a non-original will (a copy). Contact our office and we will explain your options.

If you are unable to find the original will, there may be a presumption that the original was destroyed by the willmaker with the intention to revoke it. To assist you, we may need to legally rebut that presumption, and will look for evidence to build a case that the original was not destroyed with the intention to revoke it.

When can I sell the deceased’s house?

It depends.

If you have a will, and you are the executor, you can list the house for sale immediately after the death of the willmaker. You cannot however, complete the sale until such time as you have obtained the grant of probate, and the probate has been registered with the land title office.

If you do not have a will, you cannot list the property at all until you have made an application to the court and have received an order appointing you as administrator of the deceased.

When you are working with your real estate agent, make sure they understand the status of the will and grant of probate. At BKS Law, we have extensive experience with real estate, and can assist you in the process of selling a home as personal representative (executor or administrator) of the deceased.

I am a construction contractor and I have not been paid by the customer (or head contractor). What can I do?

You may have rights under the Builders Lien Act [SBC 1997] Ch. 45 (the “BLA”). However, there are very strict time limits to pursue your rights under the BLA so you need to act fast. The BLA is complicated legislation and simple mistakes can result in a loss of your rights, so if you’re dealing with a possible BLA claim for the first time, you should consider getting legal advice from one of our lawyers. Call to set up a consultation today.

I loaned some money to someone and they have not paid it back. What are my options?

A loan is (usually) a simple contract, and when the loan is not paid that is considered a breach of contract. A claim for non-payment on a loan can be heard in any of the Civil Resolution Tribunals for claims up to $5,000, Provincial Small Claims Court for claims up to $35,000, and the Supreme Court of British Columbia, which does not have a monetary limit.

My family member is no longer able to make financial decisions for themselves and doesn’t have a Power of Attorney. What are my options?

When a person loses mental capacity, you or another family member can apply to the Supreme Court of British Columbia to be appointed that person’s committee under the Patients Property Act (RSBC 1996) Ch. 349. There are two levels of committeeship, one that only covers the patient’s financial decisions, with the patient continuing to make decisions on their own self-care, and the higher level of being a committee for both financial decisions and self-care. Contact our office if you would like to discuss whether applying for committeeship is necessary.

My sibling has Power of Attorney (POA) for a parent and I believe they are abusing the POA. What are my options?

There are various options available when an individual suspects another of abusing their power under a Power of Attorney. These range from working with government agencies such as the Public Guardian and Trustee, to commencing a claim to have the Power of Attorney revoked. If you are concerned that a loved one is suffering financial abuse, contact our office today to arrange a consultation.

Note – if you are concerned about the physical safety of a loved one, you should contact law enforcement.

How do I get appointed Committee?

Whomever gets appointed as a committee is at the discretion of the Supreme Court of British Columbia. The best interests of the patient will always be paramount. Any person can apply to become a committee, but the court will first prefer to appoint a close family member with a history of trust and authority by the patient. You will also need an affidavit from two physicians which set out their opinion that the patient is incapable of managing their financial and/or personal affairs. If you need assistance applying to be appointed committee, please contact our office.

My parent has passed away and the Executor has not taken steps to probate the Will. What are my options?

Assuming that probate is necessary, an Executor has a duty to efficiently administer an estate. Under normal circumstances, an Executor is expected to gather and begin distributing assets within a year. If an Executor is refusing to take steps to administer an estate, you may be able to make an application to the court to have the individual passed over or removed as Executor. To determine the best next steps, please contact our office to arrange a meeting.

My sibling has taken money out of my parent’s bank account using a POA. What can I do to have those funds returned to my parent?

If your sibling is taking money out of your parent’s account for your parent’s benefit, then they can do so using the POA. If you are concerned that your sibling is taking money for their own use, there are various options to prevent your sibling from taking further funds and require they return the funds taken. If you are only learning that your sibling took funds using a POA, after your parent has passed away, it will be up to the administrator or Executor to take steps to inquire as to whether the funds should be returned to the estate. If you have concerns about the above, please contact our office to arrange a meeting.

I have Power of Attorney for my elderly mother. She owns property jointly with my sibling. My mother would like to sell the property as she needs the money for her care.

If the sibling won’t agree to have the jointly owned property sold, then you may be able to apply, using the POA, on behalf of your mother under the Partition of Property Act (RSBC 1996) Ch. 347 to have the court order the property be sold. Whether the court will order the property to be sold will be dependent on a number of factors, such as who truly owns the property and why your sibling was added to title. Title to a property does not always reflect the true ownership of that property. To discuss your options, please contact our office today.

My spouse passed away and I was left out of the Will. What can I do?

In British Columbia, there is legislation in place that allows for a spouse or child to apply to the court to have a will varied. Whether a court will vary the terms of a will, and how much you may be entitled to as a surviving spouse, will depend on a variety of factors, including assets you received outside of the estate such as life insurance. If you feel you have been unfairly left out of your spouse’s last will, contact our office to discuss your options.

The Executor of my parent’s estate is not distributing the estate in accordance with the Will. What are my options?

An Executor must follow the directions in a will unless all of the beneficiaries consent or there is a court order directing otherwise. If you are the beneficiary or the legal guardian of a beneficiary, then you may have a claim against the Executor for their failure to follow the directions of a will. If you have concerns an Executor is refusing to carry out the terms of a will, contact our office today to discuss your options.

I had a signed Contract of Purchase and Sale and the buyers did not complete the deal. What are my options?

While some special rules apply, generally speaking, a contract for the purchase of real estate is just like any other contract. If the contract is breached, then you may be entitled to compensation. To determine what steps you should take, and whether legal action is appropriate in the circumstances, please contact our office to arrange a meeting.

Do you offer a free consultation?

All of our consultations are payable based on hourly rates, which will vary with the level of experience of the lawyer. We will try and match your case with the appropriate lawyer to ensure your money is spent efficiently. Under special circumstances, we may be able to offer a reduced rate.

How Can We Help You?

When you contact us, you speak directly with our lawyers who take pride in helping the community grow by offering comprehensive legal advice to local business owners and families.

Need legal advice? Call our team at
(604) 542-5344