A Will is a legal document that allows you to set out what you would like done with your estate after you die. Your estate consists of any land, house, money, investments, personal items and other assets that you own. Your estate generally will not include assets you own jointly with another person, or assets that you have designated beneficiaries.
- Dying without a Will
- Why is it helpful to have a Will?
- When does my Will take effect?
- Wills Notice
- Executor’s Responsibilities
- Choosing an Executor
- Can you disinherit a spouse or child?
- Do I have to use a Notary Public or Lawyer to prepare my Will?
- I already have a Will?
- Information Required to Prepare Your Will
Dying without a Will?
When a person dies without a Will, he/she is said to have died “intestate”. This means the province – not the person who died – gets to determine who will inherit his or her assets. For most people, the idea of having the province split up what people have worked all their lives for is simply not acceptable. Importantly, it is also helpful to have a Will to make things easier for your family when you are gone. If you don’t have a Will someone, usually the next-of-kin, must apply to the court to be appointed as an administrator of the estate or the public trustee can be appointed administrator. The Wills, Estate and Succession Act sets out the protocol for the administration and division of assets under an intestacy. More information is available at the Public Trustee Site.
Why is it helpful to have a Will?
A Will is a legally enforceable document that contains a set of instructions that become effective upon the death of the person who made the Will. If you make a Will, you assure yourself the opportunity to express individual preferences, voluntary appointments and consider bequests to take effect upon your death. In the absence of a Will, a court appointed Administrator would be established and the fate of your assets determined by the Wills, Estate and Succession Act of British Columbia.
When Does a Will Take Effect?
A Will takes effect upon your death.
Wills Notice
After your Will has been prepared and signed you can file a “Wills Notice” at the Wills Notice Registry, Division of Vital Statistics to record the existence and location of your Will. A common misconception is that your Will or a copy of your Will is to sent to the Wills Notice Registry. This is not correct. The purpose of the Wills Notice Registry is simply to provide written notice to anyone searching the Wills Notice Registry with notice that you have a Will and the details of where you are keeping your Will. For instance, you may be keeping your Will in your safety deposit box at your bank or your home. It is not mandatory that you file a Wills Notice but it normally recommended as it indicates where you have put your Will.
Despite filing a Wills Notice you should always advise your Executor and family members of the location of where you will be keeping your Will.
Executor’s Responsibilities
Briefly, an Executor is entrusted with the responsibility of carrying out the instructions in the Will and winding up the deceased’s earthly affairs. Typically the responsibilities of an a Executor include finding and safeguarding the deceased’s assets and managing them until they are distributed; making application for probate if necessary; making funeral arrangements, using estate funds to pay debts and expenses; filing tax returns; handling the day to day details such as terminating leases and credit cards, notifying banks and government agencies such as the post office and social security etc and locating and distributing the assets to the persons who are entitled.
Choosing an Executor
Most people choose their spouse, an adult child or a friend. You can also choose a professional such as a lawyer or trust company.
You should take into account that selecting a beneficiary as your Executor might lead to a conflict of interests because a beneficiary who is also an Executor may be required to choose between awarding assets to him or herself or to another beneficiary. This situation can be avoided by selecting an Executor who is not a beneficiary.
In addition, if your assets include a business, you should be cautious about selecting an Executor who is also a partner in your business as this situation can create conflicts of interest because the Executor/business partner may have motivation to continue running the business, while it may be in your beneficiary’s best interest to sell it.
If you own a wide rage of complex assets, you should select an individual with experience in those type of assets.
Whoever you choose to be your Executor should be a person who is trustworthy, with common sense and good judgment, who will treat everybody fairly. You must also ensure that that the person you appoint will be willing to act as your Executor.
Can You Disinherit a Spouse or a Child?
Many people incorrectly believe that they can successfully disinherit a spouse or child by leaving him or her just $1.00. Provisions in the Wills Estates and Successions Act of British Columbia provide that if a testator dies leaving a will that does not, in the court’s opinion, make adequate provision for the maintenance and support of the testator’s spouse, common-law spouse, or children of the testator, the court may vary the Will in an action commenced by or on behalf of the spouse, common-law spouse or children of the testator.
Do I have to use Notary Public or Lawyer to prepare my Will?
You do not have to use a Notary Public or Lawyer to prepare your Will. There are self-help Will kits available in stores but mistakes are easy to make and you are taking a risk that a Will prepared without professional advice will not do what you want. Will making is an area where professional advice is well worth the cost.
In BC a Will must be witnessed by two people who must both be present at the same time you sign your Will. The witnesses must not be a beneficiary or a spouse of a beneficiary in the Will. A gift made in a Will to someone who acts as a witness in the Will (or to their spouse) is invalid. A hand written, unwitnessed Will, is not normally valid in British Columbia.
I already have a Will?
You should review your Will every few years to make sure it is current. For example, your Executor may have moved away or for another reason may no longer be able to manage your estate. Another example, is if you marry after the date of your Will your existing Will may not contain your current wishes.
You cannot update your Will by writing changes on it. You should see a Lawyer or Notary to up date your Will.
Information Required to Prepare Your Will
To prepare for making a Will you should make a list of the following:
- Your legal name (any aliases) and address
- Full name and address of whom you wish to appoint as your executor.
- Full name and address of whom you wish to appoint as an alternate executor (should your first choice be unable to act).
- A brief description of your assets.
- A detailed description of any items or specific sums of money you wish to leave to beneficiaries.
- How you want to distribute the balance of your estate (often referred to as the residue of your estate) after specific items or money have been given, if any.
- Full names and addresses of all beneficiaries.
- If a beneficiary should predecease you, who should receive his or her share?
- If you have children under 19 years of age, the name and address of the person(s) you wish to designate as guardian.
- Information on any burial or cremation arrangements you may have.
For additional information, please see the Estate Planning Guide.