Resources (Wills and Related Legal Terms)
Wills and Related Legal Terms
What follows is not a substitute for seeking legal advice. It is meant to alert you to issues and terms related to wills. Consult a lawyer to determine if you need a will and how it should be prepared.
What is a will? A will is a legal, written document that sets out how you want your property and possessions to be distributed after your death. A will also names an executor who is the person who will look after your estate after your death and make sure your assets are distributed in the manner set out in your will. If you have young children, your will can name a guardian to look after them in the event that both parents die. Provincial and territorial law sets out the requirements for a valid will. A formal will has to be signed, dated, and witnessed, and the writer must be of sound mind and have reached a certain age (often 18 year old).
Why make a will? A will ensures that your wishes will be carried out with a minimum of expense and delay after your death. Without a will, provincial or territorial legislation will determine how your assets are to be distributed to your family members and the process takes much longer.
Can a will be changed? Yes, a will can be changed as often as you like. However, changing a will is not as simple as stroking parts out and inserting new text. You will need to either create a new will (making clear that the old will is revoked) or add what’s called a “codicil” that sets out the change. Codicils must be signed, dated, and witnessed, as is a will.
What does an Executor do? The role of the executor is to represent your interests after your death. They will be responsible for making funeral arrangements, paying outstanding debts and carrying out the instructions you have left in your will. The executor will also be responsible for filing a final tax return after your death. Choosing who you want to represent your interests after your death is not simple. Many factors will need to be weighed, including the age and the health of the person, as well as where they live. You will also want to choose someone who can manage the concerns of others, who will be impartial, and who is financially stable.
What is probate? To probate a will is to review or test it before a court of law. Probate ensures that the will being used to distribute assets is the “true” last will and testament. Your executor will be required to submit a number of documents to the court registry in order to complete the probate process. Once probate is complete, the executor will receive a formal certificate verifying that the will has been proven and the executor has the legal authority to distribute the assets as laid out in the will. If the value of the estate is very small, the executor may not need to probate the will, as some institutions may be willing to transfer small amounts of money or assets directly to you.
Are some assets dealt with outside the will? Yes. If you own property as a joint tenant with someone else, for example, the property will be transferred automatically to the surviving partner after your death. All that is needed is for the provincial or territorial land registry office to receive the death certificate naming the deceased property owner. Then, title of the property is transferred solely into the survivor’s name. In addition, life insurance policies and Registered Retirement Savings Plans (RRSPs) allow you to name a beneficiary in the event of your death and these monies would also be transferred directly to the named beneficiary upon proof of death.
How do I prepare a will? Most people will seek some assistance when they are preparing to draw up a will. Common options include using a lawyer or getting help from a standardized will kit. If you have a large estate, you should probably consider drawing upon the expertise of a lawyer. In addition to actually drawing up a will, a lawyer can also provide advice on ways to reduce the amount of tax paid out in the process of distributing your assets. Whatever path you decide to follow, there are some basic decisions that you will need to make in order to complete your will. You will need to make a list of your assets and liabilities, determine who your beneficiaries will be (who you will leave your assets to), and choose an executor of your estate.
Documentation If you wish to prepare information that will assist survivors or the executor of your estate, the following documents could be useful to have on hand:
- Birth certificate or proof of citizenship
- Social Insurance Number
- Marriage license
- Insurance policies
- Bank statements
- Details of any trust accounts
- Deeds to real estate
- Vehicle ownership
- List of all assets (property, investments, etc.)
- List of all pension and retirement accounts, including Registered Retirement
- Savings Plans (RRSPs) and Registered Retirement Income Funds (RRIFs)
- List of living relatives and their contact information
Useful links regarding wills in BC: