Wills

Will the government get all my money if I fail to write a Will?

Probably not. The reason is that the Legislature in British Columbia has created a new statute that controls how your property passes at your death if you die without a valid Will. It has been said that effectively, the Legislature has written your Will for you if you fail to write one yourself. According to the legislation, if you do not have children your spouse, if you have one, is first in line to inherit all of your estate. If you have no spouse at the time you die, your children take your estate. If you have no spouse and no children, your parents would inherit. But back to the question, the Province of British Columbia becomes the beneficiary of last resort of your assets; if there are no other takers under the Wills, Estates and Succession Act, (S.B.C. 2009) c. 13 “WESA”.

If I write a Will, can I disinherit my spouse?

You can try but it is unlikely your estate will get away with it! WESA gives to certain persons (a spouse and children) certain rights. If you wish to disinherit those persons you need to speak to a lawyer.

If I write a Will, can I disinherit someone by just leaving him $1.00 (One Dollar)?

Not if that someone is a spouse or a child. Again, if you intend to make an unequal distribution in your Will you are advised to seek the counsel of a lawyer well-versed in Wills and Estate Planning.

Does a Will have to be prepared by a lawyer?

No, as long as a Will follows the requirements for execution set forth in the legislation.

What are the top 5 reasons NOT to write your own Will?

1. People who write their own Wills often use language that is not precise, which may lead to an expensive Court application to determine what was intended.
2. People who write their own Wills often think that their Will can control the passage of property that cannot be controlled by a Will. For example, if you are the joint tenant owner of land with another person, and that other person survives, your Will may not necessarily control the passage of that land which may automatically pass to the surviving joint tenant.
3. People who write their own Wills often do so with Will Preparation Kits that they find in office supply stores. Sometimes, the Kits are defective. More often, the Kit is OK, but the instructions are not clear, so the person fails to use the right form or fails to fill it in correctly.
4. Lawyers earn fees in post-mortem litigation arguing over the meaning and the validity of homemade Wills and Will Kit Wills.
5. When you go to a lawyer to do a Will, part of the process is for the lawyer to learn about your assets so that they will pass in a manner consistent with your wishes. The point is that you are not just paying the lawyer to fill out a form; you are getting much more.

Does a Will avoid probate?

No. A Will is a set of instructions to the Court on how your property is to pass at death. If you own property that needs to pass to others at your death by probate, the Will is what a Court will rely upon to decide who is appointed your Personal Representative. In contested cases, the Court will rely on your Will to decide who is entitled to your probatable assets upon your death. Many assets avoid probate just by the way they are titled. Life insurance policies, for example, do not pass through the probate process if you have named beneficiaries other than your Estate. Assets that are owned by your Trustee under a Living Trust are not probatable because you do not own them at your death, your Trustee does!

Do all my assets have to be probated on my death?

No. 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 to die, 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, 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. Sometimes people establish a Living Trust but don’t get around to retitling all the assets into the Trust before they die. Sometimes they become incapacitated as the 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.

Consider changing your Will if a beneficiary dies.

STRONGLY consider changing your Will if your spouse is going into a care facility.

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?

If you do that, make sure that the estate has enough money in it to be able to afford handwriting experts, lawyers and other expenses of litigation.

Does a Will have to be witnessed?

Yes, in fact by 2 witnesses, both present at the same time along with the person signing the Will. There are other requirements of who can witness your Will. Speak to your lawyer regarding that.

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.

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?

Put it in a fireproof place. Your freezer is not such a place. If you choose to store it in a bank safe deposit box, your survivors will have access to it after your death with very little trouble. Word to the wise: Let your Personal Representative:

1. know that you nominated him/her to be your Personal Representative;
2. know where you placed the key to the safe deposit box.

An alternative is to leave your Will with the lawyer who prepared it for you.

Is a Will Kit that I buy in the office supply store or on television going to get me into trouble?

See What are the top 5 reasons NOT to write your own Will?