This is even more so the case when a new immigrant still has ties to another country. Cross-border law is always complex and can have unanticipated consequences. Estate planning is no different and requires addressing potential law conflicts, tax considerations, and ensuring that your wishes will be effectively carried out across borders. So, if you’re a new immigrant to Canada living in British Columbia, what do you need to think about when you’re planning for death or possible incapacity?
Location of Property and Children
The first thing to consider is where you are located, where your property is located, and where your minor children are located. If you have real property located in a different country, generally your executor(s) will need to apply for probate there, so you will want to ensure that your will complies with the laws for that country. If you have children who are under the age of 19, you will generally want to appoint a guardian. Again, it’s important to ensure that whatever you use to appoint them, be it a will or something else, is valid in the country where they reside.
Things can get more complicated if you have property in multiple countries or in a country or province that you don’t live in. In that case, you may want multiple wills or at least to confirm that your will for one place meets the requirements of another.
Wills from Other Countries
If you have a will from another country, it may still be valid in BC. The Wills, Estates and Succession Act (WESA) provides some flexibility about what qualifies as a valid will, particularly if it was a valid will in the country in which it was signed. Consequently, a will from another place may still be valid for the purposes of BC. Of course, this is dependent on a variety of other factors, so if you have any doubt, it can be wise to have your will reviewed by a lawyer in BC to be sure that it is sufficient.
Additionally, if your will is accepted for probate in another jurisdiction, your executor can apply to have that foreign grant accepted in BC for the purposes of probating your assets here.
One thing to be wary of is potential conflicts of laws (ie. laws not getting along and saying contradictory things). Conflicts like that can create problems where a court application is necessary to determine which law prevails and this will add greater complexity and cost to the administration of your estate.
Assets in Other Countries
Taxes are also an area of concern, though they are too complicated an area for this blog post. If you do have assets in multiple countries, it can be vital to ensure you have appropriate advice from professionals in both areas(or someone qualified to practice in both) to ensure that you aren’t going to create unnecessary tax burdens on your beneficiaries.
Wrapping Things Up
Cross-border estate planning for British Columbians with assets abroad or a desire to appoint a guardian in another country involves navigating a complex legal landscape. Compliance with the relevant statutes, understanding case law precedents, and seeking professional advice are critical components of ensuring a seamless and effective estate plan that respects the laws of both countries. By addressing these challenges proactively, individuals can have peace of mind knowing that their international assets and personal care decisions are well-managed and legally sound.
Creating a solid estate plan when you have international assets requires careful consideration of wills, taxation, guardianship, and practical strategies. The world is an increasingly globalized place, but with that comes greater complexity and greater interaction of different places’ laws. If you live in BC and have assets elsewhere or are a true globe trotter, make sure that you have a plan suitable for your situation.
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Disclaimer: This blog post is for informational purposes only and should not be construed as financial or legal advice. Consult with qualified professionals to create a personalized estate plan suitable for your specific circumstances.
