Wills are the best known of the personal planning document options. In a 2010 survey 51 percent of adults in British Columbia admitted to not having a Will. It is something we commonly procrastinate about.
Who Should Have a Will?
Any adult in British Columbia who owns property including real estate, vehicles, or other assets, has a dependent spouse or children, and wishes to have someone they know and trust take care of their estate after their death.
Executor and Trustee
This is the person who will administer your estate. You will appoint a trusted relative, friend or Professional. This person will facilitate the many tasks that must be completed for your estate such as securing your assets, paying your debts, taxes and funeral expenses, transferring payments to Guardians and distributing your estate to your beneficiaries. This person is both the Executor of your Will and Trustee of your estate and is called your Trustee.
Choosing a Trustee can be a difficult decision. That person needs to be trustworthy, cooperative and capable of making prudent business decisions. Some people choose an independent person such as a Notary Public if they do not have suitable people who are willing to act in that capacity. Your Notary can be appointed as your Executor. We are experienced, have received specific legal training and have Professional Liability Insurance for this service.
Your Trustee should be willing to take on the responsibility and should be available for an extended period of time.
A Trustee is entitled to be paid up to 5% of the gross value of your estate. The fee can depend on the complexity of the work and will have to be approved by the beneficiaries. You can also stipulate what you would like the fee to be or that your Trustee is not able to take a fee.
Guardians for Minor Children
Parents of children under the age of 19 appoint Guardians in their Will, who will act if both parents have died leaving minor children.
Without a legal Will appointing Guardians, you minor children will be taken into custody by the Ministry of Children and Families to be placed in foster care until arrangements are made for permanent caregivers who may or may not be your family members. The process of determining suitable Guardians is time consuming, costly and stressful to all involved. Both sides of the family could end up competing for custody and those battles have very few winners.
Your appointment of Guardians by your Will ensures that your orphaned children would be quickly settled with people who will love and care for them, people who will honor your life and teach your children moral values, faith beliefs and cultural heritage. Extended family members will now lend support to both the children and the adults in their new roles as Guardians.
It is increasingly common to have children who do not share the same two parents. Careful consideration must be given to ownership of assets, jointly held property and to how those assets will transfer on the death of one of you. Zoë will bring to your attention a variety of tools a blended family could use to reduce the high risk of the surviving spouse disinheriting the first spouse’s children.
A Few Things to Do Before Your First Appointment:
- You will need to choose an Executor and an Alternate Executor. Ask if they would be willing to act for you in this capacity and obtain their full legal names.
- You will need to choose Guardians if you have minor children. Choose a person (or a couple) to be the Guardians. We strongly recommend you also chose Alternate Guardians in case the first named Guardian is unable to act or to continue to act. Ask if the proposed Guardians if they would be willing to act for you in this capacity and obtain their full legal names
- Prepare a list of the full legal names of your children and any other beneficiaries. If a charitable organization is to be a beneficiary, obtain their correct legal name, address and registered charitable number (if available)
- Think about whether you would like to be buried or cremated. If you are undecided, your Will can be prepared without including this information
Changes in your life may mean you need a new Will such as a change in your marital status or Province of residence.
Your Will is a valuable document and should be stored in a safe and fireproof place. Your Trustee should know where it is stored and how to access it.
Review your Will every few years to be sure your appointed people are still who you would like to act.
You Have a Choice
You may choose not to make a Will. If you die without a Will (intestate), your assets are owned and held by the Province. If an application is made by your next of kin, the Supreme Court appoints an administrator of your Estate. Your closest relatives are entitled to apply to be appointed but disputes arise and all those entitle to apply must consent to the appointment. The Court may require the Administrator to post a bond which takes additional time and expense. Your assets will be distributed to your next of kin according to the schedule set out by law for intestacies.
Personal Planning will be easier than you imagined with the help of your experienced Notary Public, Zoë Stevens.