 |
 |
What is a will? |
| |
| The dictionary
defines a will as a legal document containing a person's last wishes as to the
disposition of his or her property after death. When you make a will, you are
known as the testator [or sometimes testatrix if female]. The person you put in
charge of carrying out your wishes as expressed in the will is called an
executor/executrix. A will must be in writing. |
| |
 :: Return :: |
| |
|
When does a will take
effect? |
| |
| A will does not
take effect until you die. If you specify in your will that you leave certain
property to someone — for example, a diamond bracelet to your sister or a
lake lot to your brother — you may still dispose of that property during
your lifetime. You may sell it, mortgage it or deal with it in any way you
choose. If that item is no longer in your possession at the time of your death,
then the will is interpreted as if that property did not exist. Of course, you
may also change your will at any time. |
| |
| :: Return :: |
| |
|
What is the role of the
executor? |
| |
The executor
has three main jobs:
 |
To gather together
the assets of the estate; |
|
To pay all the valid
outstanding debts of the estate; and |
|
To see that the
estate is distributed in accordance with the terms of the will. |
|
| |
| :: Return :: |
| |
|
What happens to my
money/property if I die without a will? |
| |
If you die
without a will, you are said to die "intestate". Two immediate problems arise
when this happens:
|
As there is no
executor appointed, there is no one to take charge of the handling of your
estate; and |
|
There is no written
record of what you would like done with your estate. |
In this situation, a British Columbia
statute called the Estate Administration Act comes into effect. The Act
provides for the appointment of an "administrator" [administratrix] to handle
the gathering together and distribution of the estate. This is done after
someone applies to take on the job, and the Court issues an order appointing
him or her, so there may be some initial delay.
The Act takes care of
the second problem by setting out a schedule of blood relatives who may inherit
the estate. Generally, the surviving spouse and children of a deceased are
provided for first out of the estate. If there is no spouse or children, the
estate is distributed, in order of priority, to the parents, brothers and
sisters, nieces and nephews and then to the closest blood relatives.
If
you die without leaving a next of kin, your estate passes to the provincial
government. |
| |
| :: Return :: |
| |
|
I don't have much of an
estate, and I'm young and healthy; why do I need a will? |
| |
It is a good
idea for everyone to have a will. Good health is no guarantee of long life
since an accident could claim any of us at any time. People often have more
assets than they think, since they might not be thinking about life insurance
and pension benefits that could be payable to their estates. Even credit card
companies will often have packages that include accidental death benefits if
airline tickets are booked using one of their cards.
Anyone with young
children should make a will so that a guardian can be named for the children,
and your wishes about their financial needs and their upbringing can be
addressed.
Even if you do not have many assets, you will want to be
sure that what you do have passes to the people whom you want to have them.
This may not happen if you do not leave a will. Finally, your estate may end up
being more complicated and expensive for your family to handle if you do not
leave a will. |
| |
| :: Return :: |
| |
|
If I get married, do I
need a new will? |
| |
| It is an oddity
of the law of wills that getting married invalidates a will whereas getting a
divorce does not. If you marry, any will you made before your marriage will be
invalid unless you expressly state that the will was made in contemplation of
marriage. Therefore, you should make a will that specifically mentions the
person you are going to marry or else you should make a new will immediately
after your marriage. |
| |
| :: Return :: |
| |
|
If I get divorced, do I
need a new will? |
| |
| A divorce does
not invalidate your will. However, a divorce will effect the will you made,
while married. Unless a contrary intention appears in your will, a divorce
will: (a) revoke any gift you give to your spouse; (b) revoke the appointment
of your spouse as the executor or trustee; and (c) revoke any power of
appointment you confer on your spouse. |
| |
| :: Return :: |
| |
|
Can I just write out my
wishes on a piece of paper or on the computer? |
| |
There are three
different types of wills:
|
Ones drawn up by a
lawyer; |
|
Ones that you can
complete yourself by filling in forms that you can obtain at any stationary
store; and |
|
Ones that you
handwrite completely by yourself. |
Ones that you handwrite are called
"holograph wills" - they are not valid in British Columbia.
In British
Columbia, a valid will must be signed at the end in the presence of two
witnesses, who must sign in the presence of each other. A will which is signed
without witnesses is not a valid will. |
| |
| :: Return :: |
| |
|
What if I only use a Wills
Kit like the ones advertised on television? |
| |
These forms are
readily available, are reasonably priced, and come with instructions for
filling them out. They offer the advantages of privacy, since no one but you
needs to know the contents. They are quickly done, and they are cheap.
The disadvantage is this: They are subject to the same strict conditions
for witnessing as a will done by a lawyer. The Wills Act [British Columbia]
sets out very specific conditions for the witnessing of wills. For example,
both witnesses must see you and the other witness sign the will at the same
time. If all three persons are not present at the same time and do not watch
each other sign the will, it may be held to be invalid. Furthermore, a
beneficiary [i.e. a person who gets something under the terms of the will] must
not be a witness. If he or she is, then while the whole will will not be
invalid, the gift to that person will be. For example, if you leave your estate
to your wife and your wife is one of the witnesses to your will, then the gift
to her will be invalid.
Wills on stationery form may also run a risk of
being confusing or ambiguous in their interpretation. If you decide to make
your own will using a store-bought form, you should read the instructions very
carefully - be sure that you understand them and follow them exactly. If you
have any doubts, you should consult a lawyer. |
| |
| :: Return :: |
| |
|
What are the advantages of
using a lawyer to prepare a will? |
| |
There are
certainly advantages to having a lawyer draw up your will. He or she has a lot
of expertise that you can call upon in matters like tax consequences, trusts,
making suitable arrangements for young children, and many other matters.
Wills have to be worded very carefully and precisely to make sure that
exactly what you want comes to pass. Lawyers are used to careful use of
language and are unlikely to make a mistake. In the unlikely event that the
lawyer should make a mistake, there is insurance to cover the situation. It is
particularly important for some people to consult a lawyer about making a
will:
|
People with large and
complex estates; |
|
People who are
separated or getting divorces, so that their spouse does not inherit the
estate; |
|
Older or ill people
who feel that they are being pressured or influenced by others; and |
|
People who are
thinking about getting married. |
|
| |
| :: Return :: |
| |
|
How much does a will
cost? |
| |
There is no
exact answer to this question. It will vary depending on the complexity of the
will and the expertise needed to draft it.
As a general rule, a simple
will may cost between $150 and $350. The cost for separate wills for both
husband and wife done at the same time, usually results in a reduced fee. |
| |
| :: Return :: |
| |
|
Can I save money by
planning my will/estate a certain way? |
| |
| Yes. A will
avoids having the estate from being distributed by court according to a set
provincial formula. A valid and well drafted will can be used to help minimize
the tax liability that will be owing on an estate. Generally, a taxpayer is
deemed to have disposed of all of his or her capital assets at their fair
market value as the date of his or her death. Any gains or losses at the time
of death would thereby be triggered. The tax on these accrued gains or losses
can be avoided through testamentary trusts to family members or through the use
of a spousal rollover. |
| |
| :: Return :: |
| |
|
Can I leave instructions
regarding life support in my will? |
| |
| Yes, but it is
not recommenced that you do so in a will, which speaks after death. An
expression by a person who wishes that no life support systems or heroic means
be taken when there is no reasonable expectation of recovery from an extreme
physical or mental condition, should be indicated in a living will. Although
this is not a legally binding document, it does express in advance a person's
wishes. Copies are usually given to one's doctor, family members or any other
person who may be involved in the decision process. |
| |
| :: Return :: |
| |
|
Can I leave a conditional
gift to a friend or family member? |
| |
| Yes, but
certain conditions may not be effective as a matter of law. When a condition
must happen for a gift to take effect, the gift is said to be subject to a
condition precedent. When a gift is to take effect but terminate on the
happening of the condition, it is said to be subject to a condition subsequent.
A condition subsequent that places a restraint on enjoyment of a gift will not
be effective. A condition precedent that is not impossible to fulfill, is
expressed clearly and is not contrary to some rule of law or public policy will
be effective. A condition [usually a condition precedent] that is impossible to
fulfill is repugnant and will not be effective. Likewise, a condition that is
placed on an absolute interest will be void as being repugnant to the estate or
interest. Other types of conditions which will be held void would include those
which are not clear or certain and unduly vague [e.g. "gift to my friend"] and
conditions which are against public policy [a gift that vest beyond the limit
of time - the rule against perpetuities]. |
