I. WHAT IS AN ESTATE?
Your estate is, simply, everything you own that can be dealt with through a will. Each estate is different, and it would be impossible to list everything that could possibly form part of one. However, most estates contain some of the following:
- real estate
- chattels (tangible personal property like furniture, jewelry, clothes and books)
- bank accounts
- investments, including stocks, bonds mutual funds, futures, term deposits and GICs
- RRSPs and RRIFs
- life insurance, if it is payable to your estate
- the right to bring a lawsuit
- debts that are owed to you
- assets of unincorporated businesses
- intellectual property
- pension fund refunds
Some types of property such as joint property, life insurance that is payable to a named beneficiary, or property in which only a life interest is held, do not form part of an individual’s estate.
II. IF YOU DIE WITHOUT A WILL
If you die without a will, the Estate Administration Act will govern the distribution of your assets and the payment of your debts. Your estate will be divided in predefined shares that may not reflect what you want.
The Estate Administration Act provides for the appointment, by the Court, of an administrator for your estate. Under the legislation, someone close to you may apply to be your administrator. If no one applies, the Public Trustee will apply to administer the estate. Until the Court application is made, no one will have authority over your affairs.
III. MAKING A WILL
THE BENEFITS OF HAVING A WILL
A will enables you to:
- within limits, divide your estate in any way you wish
- give items with special meaning to specific beneficiaries
- provide for step-children or a partner to whom you are not married
- choose the person or institution that you wish to have administer your affairs
- in some cases, choose your children’s guardians
- delay distribution of your estate to beneficiaries until they reach an age you think is appropriate
- in many cases, reduce the cost of administering your estate
- allow more flexibility in the administration of your estate
FORM AND VALIDITY
In British Columbia, a will must be in writing and must be witnessed by two persons who are present both while the will is being signed and while the will is being witnessed.
Marriage will automatically revoke your will unless the will was made specifically “in contemplation of marriage”.
A person who is a beneficiary under a will or the spouse of a beneficiary may not witness the will.
Unsigned wills, videotaped wills, audio tape recorded wills and wills that are not witnessed, witnessed by one person or improperly witnessed are invalid in British Columbia. There are other ways that a will can be invalid, as well.
An invalid will is exactly the same as no will at all.
All wills contain the following provisions:
- appointment of an executor
- instructions for funeral arrangements and payment of debts
- bequests: specific, general or a combination of both
A will can also contain the following:
- creation of trusts for minor children
- appointment of a guardian for minor children
- creation of trusts for charity
- instructions to the executor re. carrying on a business or corporation
- AND a wide variety of other clauses, depending on the situation
Many wills create trusts. A trust is an arrangement whereby a person, group of people or an institution, called the “trustee,” is given “custody” of property for a period of time. The trustee is obligated to manage the property in accordance with the terms of the trust.
Common reasons for creating trusts include:
- keeping control over gifts to minors
- delaying distribution of estate property
- providing for a beneficiary who is not capable of handling money
- providing for beneficiaries one after the other (this can also be done through the creation of a life interest)
- leaving money to a charity for a specific charitable purpose
- Wills that create trusts contain carefully worded clauses about the trust terms including provisions with respect to when the beneficiary may have the money, types of investments the trustee may place the trust property in, and the trustee’s power to advance funds.
IV. CHANGING YOUR WILL
If you change your mind after you make your will, or if your circumstances change, you can either revoke your will or make a codicil. You can revoke your will by destroying it with the intention of revoking it, by signing a document in which you declare your intention to revoke it, or by making a new will.
A codicil is a document that is prepared and executed just like a will. It forms part of the original will to which it refers. If you have changed you mind about only part of your will, a codicil may be all you need prepared in order to keep your estate plans up to date.
We recommend that you review your will at least once per year, to ensure that it continues to reflect your wishes and circumstances.