FAQs

As a Tenant in Common, you own your interest in the property outright: on your death, your interest in the property is yours to leave to a beneficiary. This is how you may own property with a business partner.

As a Joint Tenant, there is a right of survivorship: on your death, your interest in the property immediately reverts to the surviving Joint Tenant(s). This is generally how we would register property in the case of a husband and wife.

There are various federal programs available through your lender or broker that may provide some assistance with your purchase. One matter to consider is that Property Transfer Tax applies to all purchases of real property in B.C., unless there is a reason that the transaction is exempt or partially exempt. To qualify for an exemption as a first time home buyer one of the ten main conditions that must be met is that you “must not have previously owned an interest in a principal residence anywhere”. If you did not disclose that you previously owned a home regardless of the location, or made any false declaration, you could be assessed a penalty equal to twice the tax otherwise payable.

Although this would be a question better asked of the realtor, it is my understanding that although many realtors search title when listing a property and prudent realtors search title on behalf of a buyer prior to having them enter into a binding contract, it is not mandatory for a realtor to search title even though they could be negligent if they do not. As such, the onus is on the buyer to ensure that this is done before they sign!

• Step 1 – Retain the services of a lawyer or notary. You should retain your lawyer or notary as soon as you have an accepted Contract of Purchase and Sale and have removed all subjects. Ask your other professional advisors for a referral.
• Step 2 – Your lawyer or notary will need to gather information from you including how you wish to hold title to the property if you are buying with your spouse or partner. Don’t hesitate to contact your lawyer or notary if you have not heard from them at least 3 – 4 weeks before the closing.
• Step 3 – Your lawyer or notary conducts a title search and obtains tax information and any additional information necessary to prepare Statement of Adjustments. If you are taking a mortgage your lawyer or notary will need to obtain an insurance binder with “loss payable” to your lender.
• Step 4 – Your lawyer or notary prepares closing documents including title transfer, mortgage, property transfer tax forms and Statement of Adjustments. Your lawyer or notary will forward the seller’s closing documents to the seller’s lawyer or notary for execution.
• Step 5 – 1 – 3 days before closing is when you usually meet with your lawyer or notary to sign documents and deliver the balance of the down payment or equity. the balance of funds will need to be paid to your lawyer or notary by certified cheque, bank draft or inter-bank transfer. If your funds are invested ensure that they will be available for deposit in advance of closing.
• Step 6 – Your lawyer or notary will register the transfer and mortgage documents, arrange for the seller’s lawyer or notary to pick up funds and notify you that the purchase has completed.
• Step 7 – Normally you receive the house keys directly from your realtor on the Possession Date as set out in the Contract of Purchase and Sale.
• Step 8 – Move in and enjoy your new home!

If your father has already been diagnosed with Alzheimer’s, it is unlikely that he would be considered to have sufficient capacity to give instructions for a Power of Attorney anyway. He may, however, have sufficient capacity to appoint a Representative through a Representation Agreement as the “test” for capacity is considerably different for a Representation Agreement. If he is unwilling to enter into a Representation Agreement and his mental capacity has definitely declined, you may wish to obtain the advice of a solicitor with a view to obtaining Committeeship of your father’s affairs.

A “Power of Attorney” can be defined as an instrument in writing by which one person empowers another to represent him/her, or to act in his/her stead, for certain purposes. A party who has been appointed as an attorney under a Power of Attorney without restrictions has the ability to look after any matters of a “paper” nature for the party who has appointed him/her (the “donor”), such as paying bills, dealing with Revenue Canada or selling property on behalf of the donor. The bank, Revenue Canada or whomever you may be dealing with may require a certified copy of the Power of Attorney for their records as proof of your appointment. The powers granted to an attorney may be restricted to certain activities (such as dealing with the sale of a particular piece of property) and may be revoked by the donor at any time. An attorney may not use a Power of Attorney to transfer an asset of the donor to him/herself. An enduring Power of Attorney is a Power of Attorney document that can continue to be used even after the donor is no longer capable of providing instructions to the attorney. A Power of Attorney does not extend to dealing with matters of “self”, for example the authority to determine where the donor will live, the ability to make medical decisions on behalf of the donor, etc., although the new Representation Agreements may do so.
(see also “Power of Attorney” published by the People’s Law School)

Absolutely not. The Power of Attorney is a document used only while you are living.

Representation Agreements are quite simply a way to ensure that if you need help managing your affairs, you will get it from people you choose and trust. The Representation Agreement Act, which came into effect February 28, 2000, allows you to appoint someone you trust to make financial, legal, health or personal care decisions on your behalf: you may appoint one representative to look after only financial and legal matters and a separate representative to look after only health and personal care decisions: you may appoint alternate representatives: you may appoint a monitor to make sure your representatives are doing their jobs. As you can see, representation agreements can be very flexible documents.

There appears to be a great misconception (from various seminars and discussion groups) that only lawyers may prepare Representation Agreements. There are 2 different types of Representation Agreements: “Section 7” Agreements (referred to as standard agreements) and “Section 9” Agreements (referred to as enhanced agreements). Notaries Public may prepare both Section 7 and Section 9 Agreements.

You are under absolutely no obligation to appoint your solicitor. You may revoke this appointment by either making a new Will or by making a Codicil to your existing Will appointing a new Executor. A Codicil is an addendum to a Will that is generally made when you are only making one or two changes to the existing Will and is read together with the existing Will. A Codicil is also less expensive than redoing the entire Will.

This depends entirely on how your Will was originally drawn. A “standard” Will may include clauses that take into consideration future circumstances. However, if there have been births or deaths in the family, your Will may be deficient. Should you marry, your current Will, or parts thereof, may no longer be valid. You should have your Will reviewed by a Notary Public or lawyer to determine what changes, if any, may be required.

Absolutely not. The main requirements for the standard execution of a Will are that it must be witnessed by two witnesses over the age of 19 years (who must not benefit, directly or indirectly, in any way by the Will) and the witnesses must both be present at the same time as the testator and at the same time as each other so that all three observe each other signing and witnessing the Will at its end. There is no requirement for a Will to be witnessed or notarized by a Notary Public or lawyer in order to be valid. However, there are other aspects of the Wills Act which must be considered in order to ensure that a Will is valid. If you have any concerns regarding the validity of your Will, do not hesitate to contact our office for a personal consultation.

A living Will is not a legally binding document in British Columbia, but is an expression of an individual’s wishes. If a family knows, by way of a living Will or otherwise, that an individual does not wish to be kept alive in a situation where they would otherwise die if not for the use of artificial means or “heroic measures” being taken, it is far easier for them knowing that the individual has made that decision and they are not having to make it for them. Representation Agreements can specifically address this particular issue as can Advance Directives. Please contact my office for more information.

If you die without a Will, holding assets in British Columbia, you die “intestate”, and your assets will be distributed according to the Wills, Estates and Succession Act (the “Act”).  The Act sets out the scheme of distribution as follows:

The first $300,000.00 goes to the spouse, if there is one and if they have children in common and $150,000 if they do not. The balance of the money is split equally between the spouse and the children. If the children are minors, then the money is held by the Public Guardian and Trustee until the children reach the age of nineteen (19) when it is paid to them. There is no opportunity to set up a trust, or have the spouse or parent of the child administer the money. If there are no children, or spouse, then your estate is generally distributed to family members in the following priority:

(a) your parents;
(b) your brothers and sisters;
(c) your nieces and nephews;

If there are no nieces and nephews, then the estate will go to the government.  Dying without a Will does not mean your estate goes to the government, but it does mean you do not choose who your beneficiaries are. It can also mean delays, extra expenses, and considerable inconvenience and even hardship for your survivors.