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