This publication is for people who are making a will in British Columbia. It explains what is involved in making a will, what to consider in appointing an executor, and what to do after making your will. This edition reflects the Wills, Estates and Succession Act, which became law in 2014.
A will is a legal document that leaves instructions about what the person making the will wants done with their property and obligations after they die. For further information, watch the Dial-A-Law video: Making a Will and Estate Planning.
Why should I make a will?
Making a will gives you some control over what happens to your Estate after you die. Your estate is made up of the property and possessions, also known as the assets, that you own at your death (with some exceptions explained below). With a will, you can make sure the things you own go to the people you want to have them.
A will can also help the people who outlive you. They can feel sure that they are carrying out your wishes. Putting your intentions into a will can help save your family members and those you leave things to time, effort and money.
What happens if I die without a will?
If you die without a will, there is no way to prove what your wishes were. The law dictates how your estate will be divided. The rules are set out in the Wills, Estates and Succession Act.
For example, if you have a spouse and no children, your estate passes to your spouse. If you have a spouse and you had children together, your spouse gets the first $300,000 value of your estate and half the balance; the other half of the balance is divided equally among your children.
There are further rules depending on the combination of relatives alive at the time of your death. The estate goes to the government if no relatives can be found.
Another result if you die without a will is that the court has to appoint someone called an administrator to deal with your estate. That person, usually a spouse or child, needs to file documents in British Columbia Supreme Court that ask the court to appoint the person to administer the estate. If there is no one who applies to administer the estate, then the Public Guardian and Trustee takes responsibility.
Does a will deal with everything I own?
No. A will generally doesn’t cover property that you don’t own exclusively. For example, a joint bank account or a house owned in joint tenancy has a “right of survivorship.” When you die, any jointly owned properties will automatically become the exclusive property of the other joint owner. This property doesn’t form part of your estate.
Also, property where you have designated a beneficiary doesn’t form part of your estate. The beneficiary is entitled to receive the proceeds on your death. Common examples include a life insurance policy or a retirement benefit plan.
How is a will different from a power of attorney or representation agreement?
A will takes effect only after you die. A power of attorney and a representation agreement are ways to plan for the handling of your affairs during your lifetime.
With a power of attorney, you can give someone the legal power to take care of financial and legal matters for you while you are still alive. With a representation agreement, you can give someone the legal power to take care of health care and personal care matters. Both a power of attorney and a representation agreement cease to have effect when you die.
For more information, see the Dial-A-Law video: Power of Attorney and Representation.
I’ve heard the term “living will”; what is that?
A “living will” is not a legal document in British Columbia. The term has been used to describe a person’s wishes for their health care treatments, and particularly treatments they do not want in an end-of-life situation.
The options available in British Columbia to address health care wishes for an end-of-life situation are a representation agreement or an advance directive. Both are ways to plan for health care decisions that may need to be made before you die.
You can make a will on your own, or have some-one such as a lawyer or a notary public help you. There are rules and formalities that must be followed, no matter how simple the will is, or the will may not be valid.
MyLawBC.com is a new website from Legal Services Society. By answering a series of simple questions, it will help you create a will. (The site also provides information on personal planning documents such as powers of attorney and representation agreements).
Requirements for a Will
For a will to be valid:
Who can make a will?
To make a will, you must:
In considering whether a person is mentally capable to make a will, key factors are:
Who can be a witness to my will?
Your two witnesses must:
It used to be that a witness to a will could not also receive a gift under the will. But now, a witness may be able to inherit under a will. The witness has to apply to court and show that you intended to make the gift even though the person was a witness to the will. If the court isn’t satisfied, the gift to the witness is void. Either way, the remainder of the will is not affected.
Ultimately, it remains good practice for your witnesses not to be people – or the spouses of people – who are named as executors, alternate executors, or beneficiaries under the will. The witnesses do not need to read the will. All they need do is watch you sign your name to the will, and sign the will themselves in front of you.
Elements of a Will
Typically, a will has several sections:
How detailed does my will need to be?
Your instructions in the will should be clear and specific. You need to be specific about exactly who the beneficiaries are. For example, you should not say that you want to leave everything to “my best friend” or “my cousins.”
You don’t need to write down every specific item you own. You only need to be specific about who should get what when it comes to items of special value, especially if you want to make certain the item goes to a particular person.
What should not be included in my will?
A will often isn’t read until after the funeral. As a result, most wills don’t include details relating to the funeral service. You should tell the executor or your family or leave a letter saying what kind of ceremony you want when you die, and whether you want to be buried or cremated.
Any assets you own jointly with others don’t need to be included in your will. These assets go directly to the surviving joint owner on your death. They don’t form part of your estate, but are said to “pass outside the will.” For example, if you and your spouse own your home as joint tenants, the home goes directly to your spouse on your death.
Also, assets where you have designated a beneficiary don’t need to be included in your will. For example, retirement benefit plans such as RRSPs and RRIFs, where you have named a beneficiary under the plan, pass outside the will. When you die, the bank or trust company transfers the RRSP or RRIF, or pays it out, to the beneficiary you named. The same is true if you have life insurance that names a beneficiary.
TIP: You can designate the beneficiary of a life insurance policy or benefit plan in your will, even though the proceeds “pass outside the will” and don’t form part of your estate. If you do so, the beneficiary designation will alter any previous designation. Similarly, a beneficiary designation you make in your will may be altered by a later designation that is not in a will.
Do I have to leave my estate to my family?
In general, you are free to leave your estate to whomever you want. However, the law does require that you make adequate provision for the proper maintenance and support of your spouse and children. Your spouse or children can apply to court for a portion of the estate that is “adequate, just and equitable in the circumstances.”
Spouse includes a common-law spouse, which is a person you have lived with in a marriage-like relationship for at least two years. If your spouse or children wish to dispute your will because they feel they have not been adequately provided for, they have to apply to court within 180 days after probate has been granted. (Probate is a legal procedure that confirms the will is legally valid.) The person disputing the will needs to prove in court that the will does not provide for them adequately.
TIP: If you want to leave a spouse or child out of your will, you should explain this in a separate document or letter, kept with your will. You need to show that you have considered them and your obligation to provide for them. This does not guarantee that they will not receive something if they dispute the will in court. You should seek legal advice. Separated spouses generally have no legal claim to dispute the arrangements made in your will. Other relatives who are left out also generally have no claim.
When should I make a will?
You can make a will at any time. You should make a will if you marry or if you start a family. Even if you don’t marry or have children, or don’t have significant property, it’s still a good idea to make a will so that you can leave your belongings to the special people in your life.
TIP: You should try to make a will when you are in good health. To make a will, you need to be mentally capable. Your mental capability can be affected by illness, an accident, or drug treatment. If you are proven to have been mentally incapable when you made your will, it will be considered void and of no legal effect.
Do I have to get legal help to make a basic will?
It’s not too difficult to make a will that takes care of basic concerns, such as leaving a home, investments, and personal items to loved ones.
However, getting professional help to make a basic will does not cost very much, and having your will made by a lawyer or notary public is the safest way to avoid mistakes.
Getting advice from a lawyer or notary becomes particularly important where there are features such as a blended family, a charitable gift, property outside of British Columbia, a family business, a desire to hold property in trust for someone (such as a child), or a wish to disinherit potential beneficiaries.
What is an executor?
Your executor is the person you name to carry out the instructions in your will. They are responsible for settling your affairs. This usually involves paying any outstanding debts, applying for the Canada Pension Plan death benefit, selling some assets, preparing the final tax return, and distributing the estate. How much time this takes depends on how complicated your affairs are.
What is probate?
Your executor may need to probate the will. Probate is a legal procedure that confirms the will is legally valid. In the probate process, the executor submits special forms and the will to court. If everything is in order, the court issues a grant of probate.
Some estates that involve only a small amount of money (under $25,000) may not need to go through probate. It is up to the third parties who hold your assets whether they will give the executor those assets without probate.
Who should I choose to be my executor?
An executor should be someone you trust and who has the ability to carry out the instructions in your will. It’s best if he or she is familiar with your situation and your wishes. An executor can be one of your beneficiaries. Most people ask a family member or close friend to be their executor.
You can also appoint a lawyer, a notary public, or a private trust company as executor. The Public Guardian and Trustee may agree to be appointed executor in some circumstances.
In choosing an executor, keep in mind that:
TIP: It is very important to name at least one alternate or backup executor in your will. If the executor is unable or unwilling to act, the alternate can take over.
Can more than one person act as executor?
Yes, you can appoint two or more people to act as your executors. It is important to be aware that if more than one executor is named, the co-executors must act jointly. Neither of them is the “lead” executor or “main” executor. They’ll have to agree on many things, from the selling price of the house to who is going to get the family photo albums.
If one executor dies, the other one can act alone. Sometimes people choose three executors so that if there are disagreements, the executors can vote and the majority will decide. However, you need to say in the will that this is what you want; otherwise all decisions must be unanimous. You also must say that the executor who doesn’t agree with the other two will still go along with the decision and sign any necessary documents. This is called a majority rule clause.
TIP: If you appoint more than one executor, consider if they will be able to work together. You should discuss your wishes with both of them. It’s best if you can do this with them together.
How can I make the job easier for my executor?
First, ask the person you have in mind if he or she is willing to be your executor. Once they have agreed, you can make the job easier for them if you:
Where should I keep my will?
You need to keep the original of your will in a safe place that is fireproof, waterproof, and tamper-proof. There is a presumption that a lost will has been destroyed and revoked, so take care in storing the will.
You can register your will with the provincial government’s Wills Registry. The law does not require this step, but it’s a good idea because it lets others know where you have stored the
original copy of your will. To register your will, you (or your lawyer or notary public) need to file a Wills Notice with the Wills Registry maintained by the provincial
government’s Vital Statistics Agency. The Wills Notice is a form that you fill out to say that you have made a will and the location of the will.
You do not provide a copy of the will to the Wills Registry, just the Wills Notice.
You can also register personal planning documents with the Nidus Personal Planning Registry.
TIP: Tell your executor where you have stored your will. The executor needs to know where it is, so that he or she can easily access it after your death.
Can I change my will after I’ve made it?
You can make a new will at any time. Or you can change the will you’ve made by signing a separate document, called a codicil.
To be legal, the codicil has to meet the same requirements as the will. For example, it must be in writing, and be signed by you and two witnesses. You don’t have to use the same two witnesses you used for your will. The codicil must refer to the will it is amending.
Can I cancel my will?
Yes, you can cancel your will by:
A new will normally cancels any previous will. Even so, it is common practice to clearly provide for this by including a revocation clause at the beginning of a will: “I hereby revoke all my prior wills and codicils.”
Neither marriage nor divorce of the will-maker cancels a will. The exception is if you married before March 31, 2014, and made a will prior to your marriage. Your will would have been automatically cancelled on your marriage, unless the will said that it was made in contemplation of your marriage.
This resource is derived from “Writing Your Will”, © 2016 People’s Law School. It is made available under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
IMPORTANT: This page provides legal information, not legal advice. If you need legal advice consult a lawyer.
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