11 Reasons Why You Should Make a Will
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A will is a legal document that supplies instructions for what should happen after you die; it is an integral part of protecting your family’s future and ensuring that your wishes are carried out. In British Columbia, you can write your own will; however, it is wise to enlist the help of a lawyer to ensure the validity of your will, the clarity of your wishes and to ensure what you want to happen will happen. The time and expense invested in drafting one –with legal help or without—are negligible compared to the advantages and guarantees a will offers to you and your loved ones. An invalid will can create severe problems for your heirs. Blended families, in particular, can suffer greatly when deceased parents have failed to provide for children and spouses adequately.
Some of the things a will can address are:
- choosing the executor you trust to handle your affairs
- allowing the executor to act immediately after your death to make funeral arrangements and safeguard your estate, rather than waiting for someone to be appointed by the court
- ensure your property is distributed according to your instructions
- protect your minor children by appointing a guardian you trust
- forgiving debts, if that is your wish
- reducing the time to obtain probate
- reducing the costs to administer your estate
- and more
If you die without a valid will, you will be categorized (as far as the courts are concerned) as being ‘intestate,’ which may have unwanted consequences for your estate.
According to a report from the B.C. notaries, only approximately 55% of the people in B.C. have a signed, updated, and valid will. Procrastination seems to be one of the principal reasons people die intestate.
If you have a will, it is prudent to review it every three to five years, or when there has been a change in your circumstances. Therefore you should understand the valuable aspects of a will and why it can smooth the process your family will face after your death. In this article, you will find:
- important legal concepts
- the different ways a will can be made, from the more traditional solutions to some more recent innovations
- ten main reasons why you should make a will
- a brief analysis of the nature of online wills
- what makes a will valid in the Province of B.C.
1. Aspects of a Will from the Lawyer and Client’s Perspective
When lawyers are called upon to draft a will for a client, they carry a heavy onus. As well as being accountable to the client, in some circumstances the lawyer may also be liable to the intended beneficiary or beneficiaries. The lawyer’s responsibilities usually include ensuring the following:
- the client has testamentary capacity
- the client’s expressed wishes are not the result of undue influence exerted by others
- the client provides a complete and accurate inventory of the client’s property
- the client is apprised of possible tax issues, and other issues and limitations, and advised to seek further information, as necessary
- the client understands and approves the contents of the will
- the proper degree of diligence is applied to see that the will is signed in a timely manner
- the signing of the will complies with statutory formalities
More specifically, the lawyer should ensure that the will is drafted in language sufficiently clear and unambiguous to minimize the chance of a court having to interpret its meaning. This would include ensuring satisfactory descriptions of specific property and the intended beneficiaries. Furthermore, after the signature, the lawyer may inform the client of future events that could require a review of the will. Such events include, but are not limited to, marriage, divorce, births, deaths, adoptions, and purchase or sale of real property.
Some people may be reluctant to supply the required level of detail to ensure the effectiveness of the will. For example, a professional valuation of assets may be relevant to assess income tax exposure or to decide how certain assets may be disposed of, according to their nature and location. In some circumstances, an accountant may be consulted to ensure that the tax implications of the will do not defeat the intention of the will-maker.
2. The Different Ways to Make a Will
In British Columbia, there are several ways to create a legally valid will.
DIY Will Kits. These are essentially printed fill-in-the-blank document that allows you to insert information about your estate and your life that is relevant to these circumstances. After filling out the form, the document needs to be signed and witnessed correctly to be valid.
These kits may work well if you have a very simple estate and no spouse or children. However, the biggest downside of DIY wills kits is that they are designed to have a one-size-fits-all approach. Therefore, the kit cannot consider all of your unique life circumstances. As such, you may need to go to a lawyer to fix or reorganize the will, which may end up costing you the same or more than if you had gone to the lawyer or notary in the first place.
Online Wills. This method does not involve using a fillable form as the previous one but rather is a platform that uses logic to assess your life situation. Your answers to a series of questions will be formulated into a comprehensive document. This method can work well if you do not have a complex estate or want to make changes to your will in the future. Online wills make it easy to update your will and could be an option if you do not think legal advice is necessary regarding the document.
The main disadvantage is that online wills do not cater to people with complex and particular requirements. Although some lawyers believe you may still need to print and sign your will in wet ink, digital storage and signature of wills have come into existence, and the law is constantly evolving. In B.C., the Wills, Estates, and Succession Amendment Act, 2020, amended the law in British Columbia regarding wills, when Bill 21 came into effect on December 1st, 2021. It allows for the following:
- The electronic signing of wills, meaning the ability to sign the document online using a platform like DocuSign (this does not change the requirement to have witnesses)
- Virtual witnessing of wills over a comprehensive platform
- The digital and online storage of wills, meaning you will have the ability to store a digital file of your will instead of keeping a physical copy
- The digital revocation of a will
Lawyer Drafted Wills. Creating your will with an estate lawyer is the more expensive and the most comprehensive choice. Estate lawyers are versed in estate law and practice, including implications of various investments, taxes, multiple family situations, and generational giving; they can advise you on how to maximize your estate for your beneficiaries.
The most significant barrier reported to people visiting an estate lawyer is the cost and convenience, but it is often the less onerous option in the end. At Stevenson Luchies & Legh, we offer a free-of-charge preliminary call so that we can answer your initial questions and advise you on the best alternative for you.
3. The 11 Reasons to Stop Procrastinating and Make a Will
- It keeps the red tape to a minimum.
A will is a tool that will reduce the bureaucratic hurdles and protect your family from the challenges they may face after your death. Dying intestate (without a will) means the law stipulates how a deceased’s property is distributed.
- It ensures you get to decide what happens to your body.
A statement in your will concerning your remains is legally binding on your executor and family. You can decide whether you want to be buried or cremated, and you can also dictate the method by which you want those actions to occur. You can lay out the steps in as much or as little detail as you like. For example, you can choose where you would ideally like to be laid to rest and who should attend the funeral.
- It helps to ensure your kids are looked after financially.
Writing a will ensures that if something unforeseen happens to you and your partner, your children will still be able to use the money that has been saved for them. This money can include expenses for things such as education (deciding which school they go to), general living expenses (such as food, rent and enjoyment) and other expenses specific to your family situation. You can include at what age they are to receive money, and who should be the trustee of that money until they reach that age.
- It determines who the executor will be.
If you have someone you trust to be the executor of your estate, you can appoint this person in your will. If you fail to do so, the courts will appoint someone to do this, and your executor is entitled to receive payment out of the proceeds of your estate.
- It determines what will happen to your pets.
Most people want to ensure that their pets are taken care of in the best possible way. This can involve giving the pet to a trusted friend, a family member or even placing the pet in an animal shelter of the deceased’s choosing. You can also put away money to care for your pets.
6. It will determine who will manage your estate.
When you write a will, you become a will-maker and have the opportunity to nominate an executor, who will be in charge of dealing with your affairs when you die. You can also name people who may help them such as lawyers and accountants. An executor has essential responsibilities, including closing bank accounts and liquidating assets; therefore, choosing the right person for the job is important. If the court decides for you, you may not get whom you want.
7. It will set out who should care for your children.
The Family Law Act provides that a parent may in their will appoint a person to be their child’s guardian on their death. If you do not make an appointment in your will, then the child’s surviving guardian (if any) will be the sole guardian of the child.
8. It will decide who receives assets and who does not.
As the will-maker, you can name people as beneficiaries for any property you do not give specifically to an individual (called the residuary of your estate). Your executor will distribute these assets according to your expressed wishes. You have testamentary autonomy, which means you can leave your assets to anyone you wish, although your spouse and children could make a claim if adequate provision is not made for them. Keep in mind that any assets in the deceased’s sole name or that have no designated beneficiaries will likely have to go through probate (with some exceptions).
9. You can leave instructions for digital assets.
Because society is constantly evolving, the law gives you the ability to allocate any digital assets you own to specific people or companies. Among these assets are social media accounts, cryptocurrencies stored online or offline, and even NFT’s (non-fungible tokens). Just as you would want to have a plan for physical assets, it is prudent to have a plan for your digital assets as well.
10. Lower the potential for family disputes.
If you have complicated family dynamics, a will can help you sort out and organize specific arrangements for family members. If you die without a will, your family will have to guess what your final wishes were –or even introduce some of their own—which can cause unnecessary tension.
11. It can help you support any charitable causes.
When you write a will, you can preserve your legacy by leaving part of your estate to a charity or organization that reflects your values and interests. Without a will, this would not be possible other than making the gift before your death.
4. What Makes Your Will Legally Valid?
In British Columbia, the validity of a will does not depend on who wrote it, but requires the following: you must be at least 16 years of age; it must be in writing, signed, and must have two witnesses who are at least 19 years of age present, whose signatures confirm witnessing your signature. Also, note that the witness should not be the executor, nor any person named in your will as a guardian or beneficiary. Finally, the signatures must be at the end of the will. Please refer to the Wills, Estates and Succession Act for more information, or ask a lawyer that practices in this area.
The most significant barrier reported to people visiting an estate lawyer is the cost and convenience, but it is often the less onerous option in the end. At Stevenson Luchies & Legh, we offer a free-of-charge preliminary call so that we can answer your initial questions and advise you on the best alternative for you.
Conclusion
In British Columbia, only the spouse or child of the deceased can bring up a claim against the estate.
The Wills Estates and Succession Act considers children to be those who are biological or adopted children, but not stepchildren. However, a biological child who is adopted by someone else cannot make a claim — unless the adoptive parent is the biological parent’s spouse.
A spouse includes a marriage-like relationship, where the spouses cohabitated in a marriage-like relationship for at least two years before the deceased’s death, even if they did not live together, as we will see below.
When considering a marriage-like relationship where the spouses did not live together at the time of the death, the court will examine whether there is evidence that supports the claim that a couple held a loving and intimate relationship and believed themselves to be husband and wife. The court will reach a determination based on several factors applied to the specific case; thus, living together is only one factor among others to be considered.
The court’s objective is to ascertain whether the deceased has discharged their moral duty concerning the persons who would naturally be the estate recipients.
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