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Wills

WILL THE GOVERNMENT GET ALL MY MONEY IF I FAIL TO WRITE A WILL?

For most people the answer is no. British Columbia has legislation in

place that controls how your property passes at your death if you die without a

valid Will. Who will inherit if you die without a will is determined by Part 3

of the Wills, Estates and Succession Act, (S.B.C. 2009) c. 13 (“WESA”). It has

been said that effectively, the Legislature has written your Will for you if

you fail to write one yourself. According to WESA your estate passes to your

spouse (if you have one) and descendants (a term defined in WESA). Who inherits, and how much depends on your

circumstances, but simply put, your estate goes to your closest living

relatives. If you have a spouse and/or children, they will inherit. If someone

dies without a spouse or children, then their next closest living relatives

would inherit the estate. This might be parents, siblings, grandparents, great

grandparents, aunts/ uncles, nieces/ nephews, great aunts/uncles, 1st cousins

or grand nieces/nephews. It is only when there are no living descendants within

the above list that an estate might go to the government in which case it would

be governed by the Escheat Act, R.S.B.C. 1996, c. 120

IF I WRITE A WILL, CAN I DISINHERIT MY SPOUSE?

The law in

British Columbia requires a will-maker to provide proper maintenance and

support for their spouse and children. There are various reasons someone might

want to disinherit a spouse or children or leave more money to some children

rather than others. Depending on your specific circumstances, it may be

possible, and even advisable to disinherit, or leave an unequal amount to a

spouse or child. If you wish to disinherit a spouse or children or make an

unequal distribution you should to speak to a lawyer.

IF I WRITE A WILL, CAN I DISINHERIT SOMEONE BY JUST LEAVING $1.00 (ONE DOLLAR)?

Not if that someone is a spouse or a child. The rule is not that you must leave something to your spouse and children, but rather that you must leave an adequate, or a fair, amount. Again, if you intend to make an unequal distribution in your Will or plan to disinherit your spouse or children you should consult a lawyer well-versed in Wills and Estate Planning.


DOES A WILL HAVE TO BE PREPARED BY A LAWYER?

As long as a Will follows certain legal requirements set forth in the legislation, a Will can be prepared without a lawyer’s assistance. However, in our experience homemade Wills are often problematic, invalid, or have unintended consequences.Here are some of the top issues we encounter with homemade Wills.

WHAT ARE THE TOP 3 REASONS NOT TO WRITE YOUR OWN WILL?

1.Homemade Wills are often not signed and witnessed properly. If your Will is not signed and witnessed correctly it generally involves costly court applications to determine if the Will should be recognized and followed. Gifts to a witness or spouse of a witness are also void unless a Court orders otherwise.

2.Homemade Wills are often unclear on who should inherit or in what amounts. Sometimes this is a simple oversight and sometimes it is because the instructions that come with home wills kits are unclear. Lawyers can advise you on the use of precise language, which is key in avoiding an expensive court application to determine what was intended.

3.Homemade Wills often deal with assets which do not form part of an Estate (i.e. true joint tenancies). People who write their own Wills often think that their Will can control the passage of property that cannot be controlled by a Will. When you go to a lawyer to do a Will, part of the process is for the lawyer to learn about your assets and advise you on what assets will form part of your Estate to ensure your assets will pass in a manner consistent with your wishes. You are paying your lawyer to act in your best interest.


DOES A WILL AVOID PROBATE?

No. A Will

is a set of instructions on who will call in and distribute your estate (the

Executor/Personal Representative) and who the estate should go to (the

beneficiaries). Probate is the process where the Court reviews the Will and

confirms the Will is the last Will and that the correct person is applying to

be the Personal Representative. A grant of probate issued by the Court if proof

to third parties (such as financial institutions and the Land Title Office) that

they are dealing with the correct personal representative. Not all Wills need

to be probated, it depends generally on the type of assets you have, the value

of those assets, and how those assets are owned.

DO ALL MY ASSETS HAVE TO BE PROBATED ON MY DEATH?

No. Many assets avoid probate just by the way they are titled, or owned. Life insurance policies, for example, do not pass through the Estate and the probate process if you have named beneficiaries other than your Estate. Assets that are owned by your Trustee under a Living Trust also pass outside of your estate at death because you do not own them at your death, your Trustee does.

Let us use the example of husband and wife who own their house as joint tenants with right of survivorship. Upon the death of the first spouse, the title to the house can be changed to the sole name of the surviving spouse without probate.

There are other examples of assets passing without probate, including RRSP's with a designated beneficiary (other than your estate) and joint bank accounts with right of survivorship.


IF I HAVE A TRUST, DO I NEED A WILL?

Most people

who set up a Trust during their lifetime (hence the term “Living Trust”) do so

to avoid probate fees. The Trust succeeds in avoiding probate only if all

otherwise probatable assets are retitled in the name of the Trustee of the

Trust or otherwise pass outside your estate (i.e. joint tenancies and

beneficiary designations). Sometimes people establish a Living Trust but don’t

get around to transferring all the assets into the Trust before they die.

Sometimes they become incapacitated as a result of an accident and they then

receive settlement proceeds which are probatable or, they themselves receive an

inheritance which they fail to “roll in” to the Trust.

WHEN SHOULD I MAKE CHANGES IN MY WILL?

Review your Will with a lawyer every 2-5 years or whenever there is a change in your circumstances.

You should review and update your Will if a beneficiary or executor dies.

You should review and update your Will if you have children.

You should also review and update your Will if you get married or separate.

STRONGLY consider changing your Will if your spouse is going into a care facility or suffers any form of incapacity.

STRONGLY consider changing your will if your children undergo major changes in their lives or if they suffer any form of incapacity themselves.

TO CHANGE A WILL, CAN I JUST CROSS OUT WORDS ON THE OLD WILL AND WRITE IN NEW WORDS?

No. All

changes made to a Will must be signed and witnessed in the same manner as the

original Will. Handwritten changes often lead to expensive litigation to

determine the effect, if any, of the changes.

DOES A WILL HAVE TO BE WITNESSED?

Yes, a Will has to have 2 witnesses present at the same time along with the person signing the Will. There are other requirements of who can and cannot be a witness your Will.

IS A WILL PREPARED IN SOME OTHER PROVINCE VALID IN THE PROVINCE OF BRITISH COLUMBIA?

Not automatically. The Wills needs to pass this Province’s test for validity. If

you have moved and have a Will from another jurisdiction you should have it

reviewed by a British Columbia lawyer.

IS THERE A REASON TO DO A WILL EVEN IF I DO NOT HAVE MUCH IN THE WAY OF ASSETS AT PRESENT?

Yes, there are several reasons. You may acquire assets you never expected to own. One example is when you have an accident and your family secures an accident recovery for you. Your Will would direct the passage of those settlement proceeds upon your death. A second reason to have a Will, even if you have few assets, is to name a guardian for your minor children.

WHERE SHOULD I STORE MY WILL?

We encourage our clients to keep their Wills in storage with our office. We do not charge a fee for storage or retrieval of the Will. This ensures the Will will not be misplaced or unintentionally destroyed. If you have your original Will store it in a secure and fireproof place, such as a safety deposit box. Make sure to let your personal representative:

1. Know that you nominated him/her to be your Personal Representative; and

2. Know where you placed the original will for safekeeping