Real Estate Transactions
What is a Conveyance?
A conveyance is the legal process of transferring an interest in property from the seller to the buyer. A Notary Public will register the title at the Land Title Office and will remove any encumbrances affecting a clear title.
I just got a Mortgage, why do I need a Notary?
In order to secure the mortgage, a charge must be registered against the property at the Land Title Office. Your lender will not release the funds until the Notary provides proof of the registered charge.
What is Property Transfer Tax?
When you purchase or gain an interest in property that is registered at the Land Title Office, you are responsible for paying property transfer 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. You pay the tax based on the fair market value of the property at the date of registration, unless you qualify for an exemption. Family Transfers may qualify for a property transfer tax exemption. Contact us to see if you qualify for an exemption.
What will happen if I die without a Will in B.C.?
- the court will appoint an administrator to settle your estate which is a costly process;
- your estate will be distributed according to the Wills, Estates and Succession Act, SBC 2009, c.13, which may not be in accordance with your wishes;
- the Director of Child Protection will become the guardian of your minor children.
Where should I keep my Will?
You should keep your Wills in a safe, yet accessible place and tell your Executor where your Wills are to be kept.
Can I change my Will?
Yes. Any time there is a change to your situation or you would like to change the way your assets are to be distributed, you can make a new Will which will revoke any prior Wills. However, you should refrain from writing on your original Will. This includes writing further instructions to your executor, crossing out lines you want changed or printing in a new married name of a beneficiary as this can cause the Will to be partially or entirely invalid. If you determine that amendments are necessary, they can be accomplished by the creation and execution of new Wills.
Can I revoke my Will?
Yes. You may revoke your Will at any time.
How will my assets be distributed if I die without a Will?
Currently, if you are married and have children, your estate will be divided between your spouse and children. If you do not have a spouse, then everything will be divided among your children. If you do not have a spouse or children then your estate will be divided equally between your parents. If you do not have a spouse, children, or parents then everything goes to your siblings. If you do not have a spouse, children, parents, or siblings then everything goes to your nieces and nephews.
What happens to my children if I die without a Will?
The Court may assign legal guardians for minor children based on who they think is best suited.
Can I leave one of my children out of my Will?
Yes, you may leave your adult child out of your will. You choose how you want your estate to be distributed following your death. However, your spouse or children may challenge the Will in court if they feel they have not been provided for fairly. A Court may look at other gifts such as life insurance or property owned jointly, when assessing if gifts left in the Will to family members is sufficient. The Courts believe that a legal and moral responsibility is owed to spouses, minor children, and adult disabled children. Although there is no legal responsibility to provide for adult children, there may be a moral responsibility depending on the: size of the estate, child’s financial circumstances, relationship between the child and the Will-maker.
Who should I choose as my Executor?
It is best to choose someone you can trust who will protect and manage your estate for you the way you would want it to be handled. They will be responsible for paying out taxes, fees, funeral expenses, etc., carrying out all directions you have set out in your Will, and paying out beneficiaries according to your wishes. It is prudent to choose someone who is in your proximity and is willing to take on the responsibility of administering your estate as the process may be very time consuming.
Who should I choose as a Guardian?
The Guardian of your minor children should be someone who is willing to take care of your children and possibly shares the same values as you. It may also be a good idea to choose someone local to prevent your children from being removed from their school and surroundings while dealing with loss.
How long will it take for my Beneficiaries to receive their gifts?
The timeline will vary depending on the administration process but it may take 6 months to 1 year before the Executor is able to carry out the Will-maker’s requests.
When do I need to make a new Will?
It is recommended that you review your Will every two years. In conducting such a review, you should consider the following questions:
- 1. Have your family circumstances changed?
- 2. Has there been a death in your family?
- 3. Are you satisfied with your choice of Executor/Trustee and is your named Executor/Trustee still able to administer your estate?
- 4. Has there been any change in the value of your assets?
- 5. Have you made any substantial gifts or loans that should be recorded?
- 6. Have you married or divorced since your will was signed?
- 7. Have there been any recent changes to legislation that may provide you with tax and probate relief?
What information do I need to bring in to my Will appointment?
- The Notary will require you to bring in any previous Wills you have made and will confirm:
- Your full legal name and address;
- Executor and alternate executor information (who you wish to act as your representative);
- A description of any specific gifts or sums of money you wish to leave to beneficiaries;
- Full names and addresses of beneficiaries and alternate beneficiaries;
- Full names and addresses of the person(s) you wish to designate as guardian of your minor children; and
- A description of your funeral wishes.
Powers of Attorney
What types of powers of attorney are used in Canada?
Generally, there are two main types of powers of attorney commonly used for finances and property in Canada:
A general power of attorney is a legal document that can give your attorney authority over all or some of your finances and property. It allows your attorney to manage your finances and property on your behalf only while you are mentally capable of managing your own affairs. It ends if you become mentally incapable of managing your own affairs.
A general power of attorney can be “specific” or “limited”, which can give authority to your attorney for a limited task (e.g. sell a house) or give them authority for a specific period of time. The power of attorney can start as soon as you sign it, or it can start on a specific date that you write in the document.
An enduring or continuing power of attorney is a legal document that lets your attorney continue acting for you if you become mentally incapable of managing your finances and property. It can also give your attorney authority over all or some of your finances and property. An enduring or continuing power of attorney can take effect as soon as you sign it. In some cases, it is possible to have the power of attorney come into effect only when you become mentally incapable, if this was specified in the document.
What can my attorney do?
Unless you limit your attorney’s authority, they can do almost everything with your finances and property that you could do. If you don’t have any limitations in your power of attorney document, your attorney can do your banking, sign cheques, buy or sell real estate in your name, and buy consumer goods. Your attorney does not become the owner of any of your money or property. He or she only has the authority to manage it on your behalf.
Your attorney cannot make a will for you, change your existing will, change a beneficiary on a life insurance plan, or give a new power of attorney to someone else on your behalf.
Can my attorney make decisions about my healthcare and personal care?
In British Columbia it is possible to prepare a document, called Representation Agreement, that give another person the authority to make health and other types of personal and non-financial decisions for you, if you were to become mentally incapable of doing so for yourself.
Representation Agreements are not the same as powers of attorney for finances and property. It is important to distinguish between the two. This publication deals with powers of attorney for financial matters and property only. This includes your money, investments, and everything that you own, including your home.
Can I still make decisions for myself if I grant someone a power of attorney?
As long as you are mentally capable, you can continue to make your own decisions about your finances.
Who can I ask to be my attorney?
You should ask someone you trust who is at least 19 years old. You may choose your spouse, a close friend, a family member or anyone else that you trust. Carefully consider whether they are the best choice to manage your money and property, and do so in your best interest.
The person you ask to be your attorney can refuse to act for you, so it is important to ask the person first if they are willing to take on this responsibility and everything that it entails. You should also consider appointing a substitute attorney in case the first attorney can no longer act for you.
What are my attorney’s legal responsibilities?
The attorney’s role carries many legal responsibilities. Your attorney must comply with the legal duties and responsibilities of attorneys set out in section 19 of . Your attorney must manage your finances and property, and keep records, according to any directions you have given in your power of attorney document. They must act in your best interest. However, there is always a risk that they may not do so, which is why it is important to name someone that you can really trust and that understands the legal responsibilities they will be taking on.
How do you end a power of attorney?
The most effective way to terminate a power of attorney is to give your attorney a written notice saying that their power has ended, and preferably also to destroy all originals or duplicates of the document (to prevent misuse by the terminated attorney). It’s also important to give written notice of the termination to any financial institutions or other third parties where your attorney may have previously used the enduring power of attorney to act on your behalf. To cancel or revoke a power of attorney dealing with land, you must file a document called a “Notice of Revocation” in the Land Title Office where the land is registered. The court can also terminate a power of attorney; this might happen if your attorney abuses their power. It’s also possible to put an end-date, or include circumstances in which the power of attorney will end, in the document itself.
Further, a power of attorney automatically ends when you die or if you become bankrupt.
What to consider when choosing an attorney?
- 1- Personal Suitability Does this person know how to manage money and property? Do they do it well for themselves? Do you think this person will manage your money and property in the way that you want and in your best interest?
- 2- Trustworthiness Has this person always been open and honest with you? Have you known this person long enough or well enough to feel that you can trust them? Is this person able to act in your best interest? Do they have any personal issues (e.g. financial problems or health concerns) that may interfere with them properly managing your finances?
- 3- Experience Does this person understand financial matters? Does this person understand the duties and responsibilities involved in being your attorney?
- 4- Availability Does the person have the time to handle your money and property as well as their own? Does this person live nearby and is he or she easy to contact and readily available?
- 5- Reliability Has this person been someone you could rely on? Has this person carried through on important decisions or duties in the past?
- 6- Willingness Has this person agreed to take on the responsibility? Does this person clearly understand what is expected of them as your attorney?
What areas of authority are covered by a Representation Agreement?
The authorities you can include in a Representation Agreement defer depending on the type of Representation Agreement you sign.
Standard powers are granted in a Section 7 Representation Agreement consist of minor and major health care, personal care, legal affairs and routine management of financial affairs. This legal document can address many situations, particularly those where an adult needs help today.
Section 9 Representation Agreement grants the broadest health and personal care powers to your representative. Section 9 Representation Agreement is used by adults who want to plan for the future to cover all health and personal care matters possible. It can also cover arrangements for the care of minor children.
Who can make a Representation Agreement?
Representation Agreements can be used by those adults who may need help today and those who want to plan for the future.
The Representation Agreement Act says that an adult may make a Representation Agreement with Section 7 standard powers even if they cannot manage their own affairs or make decisions independently. There is no specific capability requirement in order to make this type of Agreement.
To make an Agreement with Section 9 broader powers, you must meet a specific capability requirement. You must understand the types of decisions covered by the broader powers and the possible effects of giving these powers to your representative.
When should I make a Representation Agreement?
The best time to make an Agreement is before a crisis occurs and while you are mentally capable. When you turn 19 years old, the age of majority in British Columbia, parental rights end and no one, not even your spouse, has legal authority to manage your affairs if you cannot do so. This may present a problem if you need help due to an illness or injury.
When does an Agreement take effect?
A Representation Agreement is in effect when the adult and witnesses have signed. Depending on the set up of the Agreement, at least one representative and the monitor, if one is named, must also sign. Each additional representative and alternate must also sign before they can act. To be safe, it is a good idea for everyone to sign as soon as possible. The Agreement will stay in the drawer until needed, but be ‘ready to use’ in case of an emergency.
You can include a statement in your Agreement to say it will come into effect at a later time. This requires careful consideration and specific wording to be sure it will come into effect at the times you need it.
Can I revoke my Representation Agreement?
You can revoke your Representation Agreement. The Representation Agreement Act outlines specific requirements for revoking. Note that making a new Representation Agreement does not automatically cancel your previous one.
When does a Representation Agreement end?
A Representation Agreement ends if you revoke it or when you die. An Agreement also ends if someone is appointed to be your legal guardian through the B.C. Supreme Court. The financial and legal authorities in your Representation Agreement end if the Public Guardian and Trustee takes them over.
What is not covered by a Representation Agreement?
When people are planning for the future, it is common that they will make an Enduring Power of Attorney to cover financial and legal affairs and a Representation Agreement to cover health and personal care matters. Making an Enduring Power of Attorney is important if you own real estate property, as the authority for routine financial affairs under the Representation Agreement does not include dealing with real estate.
What do I need to bring with me when I want to have a document notarized?
When you come to us for notarization of any document please ensure that you have two pieces of valid identification with you one of which is a government-issued ID that includes the person’s name, current address, signature and photograph. The secondary identification must bear your name and signature.
Do I need a certified true copy of a document?
If you are required to provide a document to someone, but you wish to keep the original in your possession, you may wish to have a certified true copy made. In order for us to make a certified true copy of a document we MUST review the original document. We will then make a copy and affix a stamp to it indicating that it is a certified true copy of the original.
What type of documents can be Notarized?
Any document that is required to be witnessed by a Commissioner or Notary Public in and for the Province of British Columbia can be attested at our office.
Common documents that are typically required to be notarized by a Notary Public include:
- Statutory Declarations;
- Travel Consent Letters for Minor Children;
- Contracts and Agreements;
- Certified True Copies of Documents;
- Insurance Loss Declarations;
- Letters of Invitation for Foreign Travel;
- Health Care Declarations
- Passport Application Documentation; and more