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A will is an important document that is overlooked by too many people.

Your will provides direction to your loved ones as to what you would like to happen to your assets when you pass away.

A will can also include other matters such as appointing guardians of minor children and funeral wishes. As with many important legal documents, a will should be reviewed and revisited every few years to ensure that your wishes are current – or revised after any major life events.

What happens if I don’t leave a will?

If you don’t have a will, then you die “intestate” and the law dictates how your estate is to be distributed. This can have unintended consequences for the remaining beneficiaries.

For example, in British Columbia, if you die with a spouse and children, then your spouse receives a preferential share of your estate (if your children are shared with your spouse, that share is $350,000) and then the balance is split equally between the spouse (50 percent) and the children (who share in the remaining 50 percent).

Having no will could cause additional costs for your loved ones. It can take time to have the estate settled and distributed and can be stressful.

What should be in my will?

When making a will, you need to consider what assets you have and how they are owned to determine what will be covered through the terms of the Will and what may flow ‘outside’ of your estate.

Any assets that are owned in true joint tenancy with another person, with the right of survivorship, will go directly to that person by way of survivorship – they won’t be dealt with within your estate and be subject to the terms of the will.

Assets that have designated beneficiaries, such as registered accounts or life insurance policies, will also go directly to those beneficiaries if they are correctly named/designated. All assets owned personally by you will likely be covered by the terms of your will.

How do I appoint an executor?

When choosing an executor you should consider someone who has the ability to manage your affairs when you are no longer there. Factors you should take into consideration include:

  1. Do they live nearby so they can easily step in and secure your property?
  2. Unless you have received specialized tax and estate planning advice, the executor should be a resident of Canada to avoid tax implications for the estate.
  3. Do they have a good relationship with your beneficiaries?
  4. Are they an appropriate age, or is there a high chance they will predecease you?

Who will be the guardian of my children?

You should consider similar factors when deciding whom to appoint as a guardian of your minor children. The person(s) should have a good relationship with your children and be willing to take on the responsibility if the situation arose.

The financial capacity of the guardian should be considered and also their age – you want to try and make sure that they will be around until your children reach the age of majority (19 in British Columbia) if something was to happen to you.

Who gets what?

When considering the distribution of your estate, it is important to take stock of what assets and liabilities would fall into your estate and what would (or could) fall outside of your estate due to their ownership structure.

In accordance with the law in British Columbia, you have a legal obligation to provide for your spouse and children, so you must consider that when deciding on the terms of your will.

If you have specific items to leave to someone, then your will is a good place to make those bequests. In addition, if you have children, or if minors may inherit, then trust terms will need to be included at least until they reach the age of majority.

Here are three things to consider when distributing your estate:

  1. Do you divide your estate into shares or percentages or use specific amounts?
  2. Is there a need or desire for part or all of your estate to be held in trust?
  3. Do you wish to make a charitable bequest?

All of this should be discussed and considered with your legal advisor when deciding on the terms of your will.

How do I make sure my will doesn’t become invalid?

There are a few reasons a will might be found to be invalid.

  • must be executed correctly before two independent witnesses
  • willmaker lacks capacity
  • someone coerced the willmaker to benefit themselves

Providing for a spouse and children is the law

Under the Wills, Estates and Successions Act of British Columbia, there is an obligation for a willmaker to provide for their spouse and children. This stems from a legal and moral obligation to provide for immediate family members.

If a spouse or a child feels that they have not been adequately provided for in their spouse or parent’s will, then the will can be challenged.

The definition of spouse has expanded in recent years and can include spouses who are in marriage like relationships but live apart, for example. Children includes both natural born children and children who were adopted by the willmaker.

If a spouse or child has been left out of the will or if they feel that there are not adequate provisions within the will, they can apply to the court to have the will varied.

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