In the 19th century, millions of immigrant settlers began moving to the Canadian West to settle. Immigration to Western Canada has not stopped, but has in fact grown exponentially over the last several decades. British Columbia’s population has become rich with diversity as people from all over Canada and the rest of the world have come here seeking a new life. Success in a new country means building a community, a family, and wanting to be able to take care of the people who matter to you, even after death. The best way to take care of the people that matter is to put the right plan in place that can transfer property like real estate, RRSP contributions, insurance plans, tax free savings accounts, and other assets with the least amount of hassle possible.

Estate planning in Canada as an immigrant from South Africa or any other foreign country requires a thorough understanding of both countries’ legal and tax frameworks. By creating a valid will (or dual wills), understanding your tax residency, planning for cross-border taxation, and making use of tools such as trusts and registered plans, you can ensure your wishes are carried out and your loved ones are protected. The complexities of managing an estate across borders make professional guidance essential, but with the right planning, you can preserve and pass on your legacy with confidence.

The Cornerstones of Your Estate Plan in BC

Estate planning is the process of organizing your affairs to ensure your assets are distributed according to your wishes upon death or incapacity. While a will is a key part of this plan, it works together with other important documents.

Wills in BC

A will is the document that states how you want your assets to be distributed after your death by someone you name as your executor (the person you choose to manage your estate). The executor you appoint takes the will to the Court after your death, where it goes through probate. Probate is a process where the Court verifies the will and grants the executor the authority to manage your estate. In Canada, each province has its own rules around estates and how wills are interpreted. In British Columbia, the Wills, Estates, and Succession Act (WESA) is the legislation that provides specific guidelines on what makes a will valid.

According to WESA, a will must be in writing and have two witnesses to the willmaker’s signature. Anyone can make a will if they are at least 16 years old and mentally capable of understanding the effect of the will. Following the correct format is crucial. A will that you write out yourself by hand (a holographic will) may not be valid in BC because it typically lacks the two witness signatures required by law. Not having a valid will in place is risky, because your assets may then be divided according to what WESA says rather than what you want. This can result in an unintended beneficiary inheriting assets that you may have meant for another person to receive.

Powers of Attorney and Representation Agreements

A complete estate plan also prepares for the possibility of incapacity during your lifetime. A Power of Attorney is a legal document that allows you to appoint someone to manage your financial and legal affairs if you become unable to do so yourself. A Representation Agreement allows you to appoint someone to make decisions about your health and personal care. Having these documents in place ensures your affairs can be managed smoothly, no matter what happens.

Estate Planning Challenges for Immigrants

Immigrants to Canada can face unexpected challenges when they plan their estates here if they have assets in South Africa. A good estate plan is one that anticipates potential problems and tries to resolve them in the way you want.

• Jurisdictional Issues: In BC, foreign wills are not always recognized immediately and could require court approval, which can take time. Dual wills are the most common strategy to avoid these problems. One will would be a BC will that covers only your BC assets, and a second South African will would deal only with assets that are owned in South Africa. The dual will strategy keeps the distribution of assets compliant with local laws for easier management of your estate.
• Disinheritance: BC provides strong protections to the deceased’s spouse and children. These family members can challenge a will and claim that it has failed to adequately provide for them. Courts are very likely to side with the spouse and/or children during these claims, which makes it difficult to disinherit someone in this province. If you intend to do so, it is vital that the will clearly states the reasons for the disinheritance. While not a guarantee, a well-reasoned explanation is more likely to be considered by the court.
• Tax Considerations: The executor you choose can create tax issues. An executor who lives in South Africa will likely trigger double taxation for the estate, as any income they manage may be taxed in both countries. One easy way to avoid this would be to name a Canadian executor to handle the Canadian will. When someone dies in Canada, they are deemed to have sold all their assets on the date of death at fair market value, which can trigger capital gains tax. An effective estate plan can mitigate the estate’s tax burden to leave the most possible to your beneficiaries.

Conclusion

Having a properly considered estate plan is important when immigrants have assets in both South Africa and in BC. Working with someone knowledgeable and experienced in estate planning is important. If you have a complicated situation—you own businesses both here and back home or you have a blended family with family members in other countries—getting appropriate advice is critical and may involve a multi-disciplinary team that includes your lawyer, your accountant, and your financial adviser. For most families, getting advice from your lawyer is usually enough.

If you would like a free 30-minute consultation, please contact Blaine Cowan at Veronica Armstrong Law Corporation. Blaine’s email is [email protected]. Veronica Armstrong is the owner of Veronica Armstrong Law Corporation. She obtained her law degree at the University of the Witwatersrand and practised law in South Africa before immigrating to BC.