A Will is a legal document that outlines your wishes if you pass away. You can use a Will to name executors, guardians (if you have minor children), and beneficiaries of your estate.
Anyone over the age of 16 with the required mental capacity can make a Will in British Columbia.
An Enduring Power of Attorney is only valid during the lifetime of the adult and ceases to be valid upon their death. The person granted authority in an Enduring Power of Attorney is referred to as the attorney.
A Will only takes effect after the will-maker dies. The person granted authority in a Will is referred to as an executor/executrix or can also be referred to as a personal representative or trustee.
The executor (or executrix) is a person appointed through a Will to:
Your executor should be:
The executor (or executrix) is a person appointed through a Will to manage your estate after you pass away, and ensure that your wishes (as stated in the Will) are followed.
They can also be referred to as a personal representative or as a trustee. Specifically, the executor will arrange your funeral, manage your assets, cancel your subscriptions, pay your debts, complete your final tax return, and distribute your estate according to the instructions in your Will.
It is a lot of work and can be complex and time-consuming.
This is why choosing the person to be your executor is so important. There are three things to consider when choosing the executor(s): trust, capability, and residency.
Your executor should be someone you trust to follow your wishes and to act in the best interest of your beneficiaries. You should also trust them to do the right thing.
Sometimes executors can be pressured by the beneficiaries to do things that they shouldn’t do. An executor should be someone who is trustworthy and will not be easily pushed around.
Your executor should be capable of dealing with the complexities of your estate.
If your finances are complicated or if you have corporate assets, then you should appoint an executor that will be capable of understanding how to deal with it all.
The residency of the executor is another important factor to consider.
Your executor should reside in British Columbia (or the jurisdiction where your estate will be probated).
There are practical implications to having your executor reside in British Columbia, as it may be more costly and time-consuming to act from a different province.
There are also legal and tax implications for having an executor that lives in a different country (including the U.S.). They may have trouble operating Canadian Bank accounts and they may need to file additional tax returns where they live.
When you are appointing an executor, you should consider appointing a back-up executor in case your first choice is unable or unwilling to fulfill their duties.
You can have multiple back-up executors, and you can rank them successively (first choice, second choice, etc.).
If you would prefer to have two or more people act together, you can choose to appoint them as “co-executors”.
“Probate” is a term that generally used to refer to the process of applying for a “grant of probate”.
“Probate” is a term that generally used to refer to the process of applying for a “grant of probate” from the Supreme Court of British Columbia.
When a person dies leaving a Will, the executor usually has to obtain a grant of probate before they can start distributing the assets of the deceased.
The grant of probate is a court order that officially appoints the executor as the trustee for the estate, which then allows the executor to start transferring assets from the deceased’s estate to the beneficiaries (or to themselves, in trust).
When applying for a grant of probate, an executor can hire a lawyer or can make the application themselves. If the executor is making the application, it is recommended they use a “probate kit”.
When an executor is getting ready to apply for a grant of probate, they must decide whether they will do it themselves or hire a lawyer to do the legal work for them.
If an executor would like to do it themselves, they should consider obtaining a “probate kit” that will provide step-by-step instructions.
Probate kits will instruct the executor on how to manage an estate, how to apply for a grant of probate, and will provide all the required forms.
The required forms are also available online through the British Columbia Courthouse Services website. If an executor needs professional help, they can hire an estate lawyer to make the probate application on their behalf.
The executor is also responsible for filing the deceased’s final income tax return, which they can do themselves or hire an accountant to do for them.
Generally, probate is only required if:
Probate is usually required if the estate is worth more than $25,000, or if the deceased owned real property (e.g. house, condo, land), or if a gatekeeper of an asset requires it before releasing the asset to the executor or the beneficiaries (e.g. bank or other financial institution).
If the deceased did not own any real property and their estate is worth less than $25,000, then probate is usually not necessary.
Banks typically have release forms and indemnity agreements that can be used to allow for the release of funds when there has not been a grant of probate.
ICBC also has a form that can be used for transferring a vehicle to the next living heir without a grant of probate. Currently, these forms can only be used when the entire estate is worth less than $25,000.
Probate fees are paid to the court upon making an application for a grant of probate, and the fees are approximately 1.4% of the gross value of the estate.
Probate fees are paid to the Supreme Court when an executor makes an application for a grant of probate.
They may also have to pay a small court application fee.
Probate fees are determined by the Probate Fee Act of British Columbia and are based on the gross value of the estate.
If the estate is worth less than $25,000, then there are no probate fees.
If the estate is worth more than $25,000, then the probate fees are charged as follows:
If the estate is worth $48,000, then the probate fees will be $138 (no probate fees on first $25,000, 0.6% on the $23,000 that is over and above the first $25,000).
If the estate is worth $66,000, then the probate fees will be $374 (no probate fees on first $25,000, 0.6% on second $25,000, and 1.4% on the remaining $16,000).
If the estate is worth $372,000, then the probate fees will be $4,658 (no probate fees on first $25,000, 0.6% on second $25,000, and 1.4% on the remaining $322,000).
Your estate is everything that you own at the time of your death, except for:
Your Will only covers what is in your estate. If an asset is not part of your estate, then the directions in your Will do not apply to it.
A better question is perhaps, “what is not part of an estate?”
When two or more people jointly own an asset (e.g. house, car, bank account) and one of the owners dies, then the remaining owners receive the deceased’s share in the asset. This is called the “right of survivorship”.
The most common example of a jointly held asset is real property (e.g. house, condo, or land) that is owned by two or more people as “joint tenants”. Most spouses that own real property together are registered as joint tenants. Under a joint tenancy, if one spouse dies, then the surviving spouse gets the house, regardless of what the Will says.
Another common example is a joint bank account, however, you must ensure that the joint bank account has “survivorship rights”, as this is not automatic at some banks.
Vehicles can be jointly registered as well.
The most common examples of assets with designated beneficiaries are life insurance policies, TFSAs, and RRSPs.
Assets with designated beneficiaries do not form part of your estate (unless all the designated beneficiaries have already died).
If the designated beneficiary is still alive, then the asset goes straight to that beneficiary, regardless of what your Will says.
If all the beneficiaries named are already dead, then the asset will normally go to the estate.
Determining what assets are part of your estate (and what are not) is important because a Will can only distribute assets from your estate.
If an asset does not form part of your estate, then the directions in your Will do not apply to it.
This can sometimes result in an unforeseen or undesired division of your assets.
You make a Will that states that all of your assets are to be split equally among all of your children.
You assume this refers to everything that you own including your house, but your house is owned jointly with your daughter.
In this situation, when you die your daughter gets the house and anything left over will be split equally among all of the children (including your daughter).
Keeping assets out of the estate can reduce probate fees. Probate fees are based on the value of the estate. If an asset does not form part of the estate, then that asset will not be subject to probate fees.
At the time of your death, you own a house, a bank account, and a car. The house was held jointly with your wife, but the bank account and car were in your name alone. In this situation, probate fees will be payable only on the bank account and the car.
Keeping an asset out of the estate can sometimes protect the asset from spouses or children seeking to make a claim against the estate under section 60 of the Wills, Estates, and Succession Act (Variation of Wills). If the asset is not part of your estate, it will not be affected by this type of claim.
At the time of your death, you own a house, a bank account and a car. All of these assets are held jointly with your spouse.
When you die, your children from a previous marriage are upset that your new spouse is getting everything so they make a claim against your estate and request that the Will be changed.
Even if they are successful in their claim and the court changes the Will to include them, the jointly held assets still go to your spouse because they are not part of your estate.
If a person has assets in more than one country or province, then it is recommended that the person has a separate Will for each jurisdiction where their assets are.
For example, if someone lives in British Columbia and has most of their assets here, but also owns a property in Arizona, then they should have a Will for British Columbia and a separate Will for Arizona.
It is important to note that when doing multiple Wills, the Wills must state that they are only for the assets located in their respective jurisdictions.
If this is not written into the Wills, then the Will that was done most recently will revoke and invalidate any Will that was previously done, even if it was done in another country.
It is possible to have a Will from British Columbia “resealed” for a different province or country, but this can be complicated, expensive, and can take a long time.
If a person dies without a Will, their estate will be distributed according to the laws of intestacy, which are outlined in the Wills, Estates, and Succession Act of British Columbia.
If a person dies without a Will, it is referred to as an “intestacy” or “dying intestate”. Someone will have to apply to the court for a grant of administration. This is similar to applying for a grant of probate, but there is a little more work involved.
The distribution of their estate is determined under sections 20-25 of the Wills, Estates, and Succession Act, and will depend on their family structure.
There are distribution schemes for every possible family structure under the Wills, Estates, and Succession Act, up to and including descendants of great-grandparents (if nobody else is alive to inherit).
Only if you die without leaving any family, up to and including descendents of your great-grandparents.
The only way the government can get your estate is if you die and leave no legal heirs, which includes descendants of your great-grandparents.
When this happens, your estate “escheats” to the government. This means that your estate is transferred to the government because there is no one else that is entitled to receive it.
If you have no legal heirs and you do not want your estate to escheat to the government, you can make a Will and give your estate to any person, organization or charity you wish.
When dividing an estate, you can make:
For every gift, you should name an alternate beneficiaries, in case your first choice predeceases you.
If you have firearms, you should gift them to someone who is licensed to possess them.
Specific gifts can be things like jewelry, heirlooms, artwork, military memorabilia, firearms, and vehicles.
Gifting specific items such as these can be problematic if you no longer own the item at the time of your death.
Your Will gifts your Royal Albert china set to your eldest daughter, but you decide to sell the china set when you downsize and move into an independent living facility.
When you pass away, your executor discovers that you sold the china set during your lifetime, so the gift becomes void.
Under section 51 of the Wills, Estates, and Succession Act, if you make a gift of something you do not own, that gift becomes void.
Your Will gifts your Royal Albert china set to your eldest daughter. You keep it safe and stored away until the day you pass away.
Your executor forgets about the gift in the Will and decides to sell the china set when they are cleaning up your house. In this case, your eldest daughter is entitled to receive an amount equal to the value of the china set.
Under section 48 of the Wills, Estates, and Succession Act, if a specifically gifted item is disposed of by the executor, then the beneficiary of that item is entitled to an amount equal to the sale proceeds of that item.
Specific gifts can also be a problem if you want to remove or change the recipient of the gift. These types of changes typically require a brand new Will, which can be costly.
Monetary gifts are simply gifts of cash amounts. This is less problematic than specific gifts, but can still cause problems if your estate is worth less than you anticipated at the time of your death.
At the time you make your Will, your estate is worth $350,000 and you have two children and three grandchildren. You make a Will that has a gift of $10,000 to each grandchild and divides the residue (remainder) of the estate among your children.
At the time of your death, however, your estate is only worth $65,000.
In this situation, $30,000 goes to your three grandchildren, and your children must split the remaining $35,000, which is probably not what you intended.
Residue refers to everything that is remaining in the estate after all debts, funeral expenses, taxes, specific gifts (if any) and monetary gifts (if any) are paid.
Most Wills do not contain specific and monetary gifts, and only make gifts of residue. This is because it is easier to make things equal among your beneficiaries when you are dividing up the residue, as opposed to making specific and monetary gifts.
It also helps to avoid some of the other issues with specific and monetary gifts that were previously discussed. You can use shares or percentages to divide up the residue among your chosen beneficiaries.
At the time you make your Will, you decide to not make any specific gifts or monetary gifts because you are not sure what you will own (or how much your estate will be worth) at the time of your death.
You have three children and you decide to divide the residue of your estate equally among them, so each one of them will receive 1/3 of the residue.
Your grandson has always wanted your car, so you decide to make a new Will to gift him the vehicle upon your death, and the residue going to your children.
Your new Will states there will be a specific gift of your vehicle to your grandson and the residue is to be split equally among your children.
You decide to make a new Will, but because you have no close family, you divide the residue among friends and charities using percentages. You give 20% to the BC SPCA, 30% to the BC Children’s Hospital, 25% to your friend Charlie, and 25% to your friend Sandra.
Whenever a gift is made to a beneficiary in a (specific gift, monetary gift, or residue), you should always state who gets the gift if that beneficiary predeceases you.
You may want the gift to go to their children (this is sometimes called a per stirpes distribution). Or maybe you want the gift to be split among the remaining beneficiaries (this is sometimes called a per capita distribution).
Or maybe you want it to go to a charity. In any case, you should always have an alternate beneficiary in case the first beneficiary refuses or is unable to receive the gift.
If you own firearms, you should consider making a specific gift in your Will of those firearms to someone that is licensed to possess them.
If you do not, and if you do not have any heirs that are licensed to possess them, then the firearms must be sold, deactivated, or turned in to the police for disposal.
Your executor is temporarily allowed to possess the firearms (unless they are prohibited from possessing firearms) while the estate is being settled.
The executor must file some paperwork with the RCMP, ensure the firearms are safely stored, and ensure that the recipient of the firearms is licensed to possess them.
Leaving a child out of a Will (disinheritance) or leaving a child a smaller share of an estate compared to the other children is allowed, but it can be challenged in court.
Under section 60 of the Wills, Estates, and Succession Act, if a spouse or child feels that they have not been adequately provided for, they can request that the court change the distribution of the Will to include them or to give them a fair share.
This is often referred to as a “wills variation claim”. This type of claim can only be made by spouses, natural children and adopted children. Step-children do not have the legal right to make this claim.
If the court decides that the claim is valid, the court can vary (change) the distribution of the Will so that it includes or provides a larger share to the claimant.
There is no guarantee that a claim will be successful, but spouses and children have the legal right to try.
Giving a spouse or child a token gift of (e.g. one dollar) does not take away their right to make a wills variation claim.
If you would like to make changes to an existing Will, it must be done by either making a codicil (formal amendment) to the Will or by making a new Will.
A codicil is typically used for small changes, such as changing the executors or guardians of an existing Will. It is a document that essentially removes part of an existing Will and replaces it with something new.
Codicils are becoming less common in recent times because they can create legal problems when the Will is probated. Also, most Wills are saved electronically when drafted so it can be more efficient to simply edit and reprint the existing Will.
The best way to change a Will is to do a brand new Will. Signing a new Will automatically voids a previous Will and it avoids some of the issues that can arise with codicils.
Once you have decided to make a Will, you then need to decide whether you are going to make one yourself or hire a notary or lawyer to make one for you.
Whether you make a Will yourself or you hire a notary or lawyer to make one for you, you must be at least 16 years old and have the required mental capacity.
If you decide to make one yourself, it is recommended to use a guide or a kit that can be found online or in some stationery stores (e.g. Staples).
You must make sure that the instructions you have are specifically for British Columbia, as Wills laws vary between different provinces and countries.
Once the Will is prepared, you must then sign in front of two witnesses. The witnesses cannot be beneficiaries or spouses of beneficiaries named in your Will.
If you decide to hire a notary or lawyer, then you will most likely need two appointments to make your Will.
At Simpson Notaries, we have a two-step process for making a Will:
At the first appointment, you will be interviewed to confirm your mental capacity, gather information about your family and your assets, and obtain your instructions for the Will.
We will ask you who you want as your executors, guardians (if you have minor children), beneficiaries, and how you want your estate divided.
The interview can be expedited by completing a checklist before your appointment. The checklist is available on our website, can be emailed upon request, or can be picked up in person from our office.
At the second appointment, you will have an opportunity to review the Will and request any changes or corrections.
If you provide us with your email address, we can also email you a draft to review at home before your signing appointment.
Once you approve of the Will, we will witness you sign and give you the original and extra copies to take home. Before you leave, we will ask you where you will be storing the original Will so we can register it with the Wills Registry.
We will also keep a copy of the Will stored electronically at our office. Once the Will is signed and stapled together, it is important to not remove the staples or make marks of any kind on the original Will.
If the Will appears to be tampered with, it may be challenging to successfully probate the Will.
Once the Will has been signed, we will register it with the Wills Registry (operated by the Vital Statistics Agency) in British Columbia, and report back to you once the registration is complete.
Registering Wills is not mandatory or required to make a Will valid, but it can be helpful if your family is unable to locate your Will after you pass away, or if they are unsure if the Will they found is your most current Will.
It is important to note that the Wills Registry does not accept or store copies of the Will. It is simply a record of when you signed your Will and where it is being kept.
You should have a lawyer prepare your Will if:
There are some situations where you may need to use a lawyer instead of a notary to prepare your Will.
Under the Notaries Act, notaries are limited in the types of trust we can create with a Will. Specifically, we cannot create trusts for adults. Because of this limitation, you should use a lawyer:
Undue influence is when somebody is using a position of authority to pressure you into signing something or giving them something. If we believe that you are being coerced or unduly influenced, we will not proceed.
Undue influence is when somebody else is using a position of authority to pressure you into signing something or giving them something.
This does not always involve the threat of violence. It could also involve an implied threat to withhold assistance or access to something you want.
If somebody else brought you to our office, we may ask them to leave the room so we can confirm that you are acting out of your own free-will and not being coerced or unduly influenced into making or changing your Will.
If we believe that you are being coerced or unduly influenced, we will not proceed.
A friend you depend on to give you rides to your doctor’s appointments and pick up groceries is asking you to change your Will. They imply that if you do not make them a beneficiary of your estate, they will stop helping you.
You have already made a Will naming your son as your first executor. Your daughter asks you to change your Will and to make her your first executor instead.
She says that if you do not, then she will not let you see your grandchildren anymore.
You are on a fixed income and live with your son. Both of you know that you cannot survive on your own.
He asks you to change your Will so that he gets a larger share from your estate than his brothers and sisters.
Although he does not make any threats, you feel pressured to do it because you do not want him to abandon you.
Testamentary capacity refers to the mental capacity required to make a Will. To be considered capable of making a Will, the Will-maker must demonstrate the following:
If a person can demonstrate these things (and if they are over the age of 16), then they can make a Will. If a person’s capacity is frequently changing (more lucid on some days than others), then it is more important that the will-maker has capacity at the time of giving instructions than at the time of signing the Will (Laszlo v. Lawton, 2013 BCSC 305).