A will is a legal document that provides instructions with respect to how you want your estate and other important matters to be handled when you die. In this article, we will discuss some of the key considerations in determining when you should make a will.
- If you do not want your estate to be distributed in accordance with the default distribution scheme set out in the Wills, Estate and Succession Act of British Columbia (“WESA”)
Generally speaking, your “estate” will consist of all of the assets that you own on the date of your death minus all of the liabilities that you owe on the date of your death. If you die without a validly executed will, your estate will be distributed in accordance with the “intestacy” rules set out in Part 3 of WESA. A brief summary of the intestacy rules set out in WESA are provided below:
- If you leave a spouse (married or common law) but no descendants: Your spouse will get 100% of your estate.
- If you leave a spouse and descendants (biological or adopted children, but not step-children): Your spouse will get all household furnishings and a preferential share of your estate ($300,000 if your spouse is a parent of the descendants or $150,000 if your spouse is not a parent of the descendants). The remainder of your estate will be distributed as follows: 50% to your spouse and 50% split equally between your descendants.
- If you leave two or more spouses (for example, a married spouse and common law spouse): Each of your spouses will get a portion of the share of your estate to which a single spouse would be entitled (see above). The portion to which each spouse is entitled is the proportion agreed to by the spouses or determined by the court.
- If you leave no spouse but descendants: Your descendants will split your estate equally.
- If you leave no spouse and no descendants but living relatives within 4 degrees of separation: Your closest class of living relatives will split your estate equally. For example, if you your parents survive you, your estate will be split equally between your parents. If your parents do not survive you but your siblings survive you, your estate will be split equally between your siblings. This scheme continues for classes of living relatives of up to four degrees of separation.
- If you leave no spouse, descendants or living relatives within 4 degrees of separation: Your estate will go to the government.
Please note that some of the assets that you own may not form part of your estate for the purposes of the intestacy rules or the calculation of probate fees (approximately 1.4%). For example, assets held in joint tenancy generally have a right of survivorship, meaning that the asset would automatically transfer to the surviving joint tenant without the need for a grant of probate or payment of probate fees. If you would like to strategically minimize the size of your estate to minimize probate fees or have certain assets pass outside of your estate, it is prudent to seek legal advice.
- If your intestate heirs are minors or persons with disabilities (or you believe that their portion of your estate should be held in trust for other reasons)
If any of the people who receive a portion of your estate through the intestacy rules set out above are minors or have a disability, his or her portion of your estate will be held and administered by the Public Guardian and Trustee (the “PGT”). The PGT will charge a fee for acting as the trustee of the funds.
Your will can create trusts for minors, persons with disabilities or any other beneficiary of your estate as well as appoint a trustee of your choosing and provide instructions on how the funds are to be used. Please note, this is particularly important if one of your intestate heirs has a disability and receives government funding.
- If you have minor children or are named as the legal guardian of minor children in someone else’s will
Your will can provide instructions on legal guardianship of your minor children as well as specific wishes with respect to their care.
If you are named as the legal guardian of someone else’s children in their will and they have named an alternate legal guardian to act in the event that you are unable or unwilling to act as legal guardian for their minor children, your will should provide instructions. Please note, this is particularly important if the person that you name as the legal guardian of your minor children is different from the person that the other person named as the alternate legal guardian of their minor children.
If you have any questions regarding the above or if you would like to discuss your estate plan, please contact us at (778) 940-3768. We would be happy to help!
Author: Danielle (Dani) Brito
This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (778) 940-3768 or any of our lawyers practicing in the area of estate planning and estate administration at the following:
Jennette Vopicka: [email protected]
Danielle (Dani) Brito: [email protected]