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booklet - preparing your will - final - 02-27-2020 1

Preparing Your Will
This publication is for people who are preparing a will in British Columbia. It explains what to do, how to choose an executor, and what steps to take next.
REVISED 2019
www.peopleslawschool.ca

About this Publication

What's Inside

Acknowledgements
Contributors to this publication: · Legal review: Stephen Hsia · Writing, editing and layout: Veronica Lorimer,
Drew Jackson, Bruce Grierson, and Elena Renderos
This publication was made possible through the funding support of the Law Foundation of BC, the Notary Foundation of BC, the Department of Justice Canada, and the Province of British Columbia.
Copyright
Preparing Your Will, © 2019 People's Law School, is made available under a Creative Commons Attribution-NonCommercialShareAlike 4.0 International Licence.
About People's Law School
People's Law School is a non-profit society in British Columbia, dedicated to making the law accessible to everyone. We provide free education and information to help people effectively deal with the legal problems of daily life.

Introduction

Why You Should Consider a Will

Choosing an Executor

Preparing a Will

Preparing Your Will: Step-by-Step 7

Changing or Cancelling a Will

Common Questions

Where to Get Help

Glossary

Introduction
This publication is for people who are preparing a will in British Columbia. It explains how to prepare a will, what to consider when appointing an executor, and next steps after the will is finished. This edition reflects the Wills, Estates and Succession Act, which became law in 2014.
At People's Law School, we believe accurate, plain English information can help people take action to work out their legal problems. This publication explains in a general way the law that applies in British Columbia, Canada. It is not intended as legal advice. For help with a specific legal problem, contact a legal professional. Some sources of legal help are highlighted in the Where to Get Help section.
We've tried to use clear language throughout. See the Glossary section for definitions of key legal terms, which are also bolded in the text.
The information is current to January 2019.

150 900 Howe Street Vancouver, BC V6Z 2M4 604-331-5400 info@peopleslawschool.ca www.peopleslawschool.ca

Visit the People's Law School website
Tip at www.peopleslawschool.ca for
more coverage of wills, including resources on how to prepare a will and tips for the executor.
2

Why You Should Consider a Will
A will is a legal document that explains what you want done with your property after you die.
It makes your wishes clear. It helps ensure the things you own go to the people you want to have them. It gives you some control over what happens to your estate after you're gone. Preparing a will lets you choose an executor. This is a person who carries out the instructions in the will. If you're a parent, you can also appoint a guardian to care for any children under age 19 after your death.
"I've decided I need to prepare a will. My sisters both want me to leave my opal ring to them. It belonged to our mother and is a family heirloom. Unless I put in writing who the ring should go to, I just know there'll be a fight about it later." Maria, Nanaimo
A will is a map for those you leave behind. Having a clear statement of your wishes helps your loved ones feel confident they're carrying those wishes out. Knowing your intentions will save them time, stress, and money at a difficult time.
What happens when you die without a will
Without a will, your successors will effectively be left guessing about what you would have wanted. With no proof of your wishes, the law kicks in. Your property is divvied up according to rules set out in the Wills, Estates and Succession Act.
The law may not reflect your wishes about who you want to inherit your property. For example: · If you have a spouse but no children, your
estate will pass to your spouse.

· If you have a spouse and children -- all of whom are also your spouse's children -- your spouse will get the first $300,000 of your estate and half of what's left over. The other half will be divided equally among your children.
· If you have no spouse or children, your estate will be distributed to descendents, parents, or other relatives. If no relatives can be found, the estate will go to the government.
If you die without a will, someone may need to apply to court to become administrator of the estate. Once approved, the administrator has the authority to distribute your assets. The administrator is often your spouse or adult child. If no one steps forward, the Public Guardian and Trustee may apply to become administrator.
You don't have to prepare a will
Under the law, you don't have to prepare a will. But it's a good idea. Preparing a will helps ensure fairness, accuracy, and peace of mind all around. It makes sure your wishes are respected and your loved ones are taken care of.
"My sister Susan died without a will. A year before, she told me what she wanted done with the things she owned. Her car was supposed to go to me. But without a will, there's no way to prove it. So everything is going to her daughter, Amy." Janet, Vernon

· Trust and familiarity: An executor should be someone you trust to carry out your wishes. It's best if they're familiar with your situation.

Choosing an Executor
The executor is the person you name to carry out the instructions in your will. They locate all of your property, pay any debts and funeral costs, prepare the final tax return, and distribute the rest of the estate as the will specifies.
Your executor may need to probate the will. This is a legal process that confirms the will is legally valid. To apply for probate, the executor needs to submit the will and certain forms to court. If everything's in order, the court issues a grant to the executor. Now the executor can legally deal with the estate assets.
Estates that involve a small amount of money (under $25,000) may not need to go through probate. It's up to the outside parties who hold your assets (such as a bank) whether they'll give the executor those assets without a grant.

· Time and ability: Being an executor takes time, energy, and attention to detail. The job will be more demanding if your affairs are complicated -- for example, if you have a lot of investments or debts, or if the will includes a trust. It helps if the person you choose is organized and a good communicator.
Other factors to consider in choosing an executor
Also keep in mind that:
· Your executor should be someone who's likely to outlive you. It's not recommended to appoint someone under age 19. If they aren't yet 19 when you die, probate may be delayed.
· Your executor can be someone who lives outside the province, but this isn't ideal either. All procedures to settle the estate will be done in British Columbia. So it's more convenient if the executor lives close by.
· It's simplest to appoint someone who lives in Canada. There are significant tax consequences, for example, if the executor is living outside the country.

What to consider when choosing your executor
Most people ask a family member or close friend to be their executor. You can also ask a lawyer, a notary public, a private trust company, or the Public Guardian and Trustee.
Important qualities to look for when choosing an executor include:
· Willingness: The person you're thinking of appointing should confirm that they're willing to take on the job.

It's very important to name at least
Tip one alternate (that is, a backup)
executor in your will. If the first choice isn't able or willing to act, the alternate can step up.
You can name more than one person to act as executor
Two or more people can be appointed to act jointly as your executors. Generally, they'll have to make decisions and act together. They'll have to agree on many things, such as the selling price of your home or who gets

the family photo albums. If one of them dies, the other may be able to act alone, if your will allows it.
If you choose three executors, your will should be clear on what happens if they disagree. You can include in the will a "majority rule clause." In that case, if there's a disagreement, the executors can vote and the majority decides. Or you may insist all decisions be made unanimously.
If you're thinking of appointing more
Tip than one executor, consider if they'd
be a good team. You should discuss your wishes with all of them, preferably together.

Preparing a Will
You can prepare a will on your own, or have a lawyer or a notary public help you. Even if your will is simple, there are rules that must be followed for it to be valid.
Legal requirements for a will
If a will isn't valid, a court may not grant probate and your wishes may not be honoured.
For a will to be valid, it must be in writing -- either typed or handwritten. It must have the date on it. It must also be signed by the willmaker and two witnesses. They must both be present and sign the will in front of you.

How you can make the job easier for your executor
You can help your executor by taking these steps:
· Register your will, and tell your executor where the original will is kept. It should be easy for them to access.
· Keep an up-to-date, detailed record of everything you own and owe. For example, record your bank accounts, retirement benefit plans, insurance policies, real estate, and pension benefits. Note any items owned in joint tenancy or that name a specific beneficiary. The executor won't have to manage these assets.
· Explain your plans to family members, the beneficiaries, or anyone who may be legally entitled to a share of the estate. Talking with them now may prevent problems later.
· Review your will and your choice of executor every few years, and consider updating it when your circumstances change.

Who can prepare a will
The person preparing a will is referred to as the will-maker. The will-maker must:
· Be age 16 or over.
· Be mentally capable of making a will.
· Freely agree with what the will says when they sign it. If it's proven in court that someone pressured the will-maker to sign a will, the will won't be valid.
When you should prepare a will
You can prepare a will at any time. But it's especially sensible to do so when you marry or start a family. If you want to leave your belongings to the special people in your life, it's a good idea to have a will.
Try to prepare a will when you're still
Tip in good health. By law, you need to
be mentally capable of making a will. If it's proven you weren't mentally capable of making a will, the will could be challenged.

You need to be mentally capable of making a will for it to be legal. You must understand:
· The nature and effect of the will.
· In a general way, the extent of the property you own that can be distributed through the will.
· How property will be distributed.
· The implications for the people who are to receive property, as well as the legal and moral claims of other people you haven't named who may nonetheless have an interest. For example, if you leave your child out of the will, do you appreciate the effect of that decision?
Your capability can be affected by illness, an accident, or drugs.
Elements of a will
Typically, a will has several sections:
· Appointing an executor: The first section of the will appoints the executor. This person is responsible for carrying out the instructions in the will. The will should specify what the executor can do.
· Distribution of the estate: The will says who receives your assets and personal belongings, and under what conditions. The people to whom you give assets are called beneficiaries. You can give people specific gifts of property or cash. The amount left over after debts and taxes are paid and specific gifts are distributed is called the residue of the estate. In the will, you say who gets the residue, and how much.
· Minors: In your will, you should name a guardian for any minor children you have and provide some money for the guardian to cover the costs of raising children. You should also create a trust for gifts you leave to your minor children. Otherwise, their share of the estate may need to be paid to the Public Guardian and Trustee, who will hold their share in trust until they turn 19.

· Other details: The will can include other details, as you wish, and depending on your circumstances.
· Signatures: The last section of the will includes the signatures of the will-maker and witnesses.
Your will should be specific in its details
Your instructions in the will should be crystal clear. Say exactly who the beneficiaries are, by name. Avoid vague statements like: "I wish to leave everything to my `best friend' or `my cousins.'"
"I have no spouse or children of my own. I want to leave my belongings to my niece after my death. In my will, I wrote her full name and relationship to me: `...to give the residue of my estate to my niece, Ada Chen....'" Lin, Vancouver
You don't need to write down every item you own. You only need to be specific if you want to give a particular asset (such as your home or an item of sentimental value) to a particular person.
"I want my son Michael to get my grandfather's gold watch which was handed down to me. In my will, I included that gift: `...to transfer my Omega gold watch to my child, Michael Cortez...' I left out any mention of my other watches or jewelry, as they weren't special in any way." Paulo, North Vancouver
What your will does not include
A will doesn't deal with everything you own. For example, it doesn't cover property you own in joint tenancy with someone else, such as a home or joint bank account. When you die, any property you own as a joint tenant

usually becomes the property of the surviving joint tenant(s). In most cases, this property isn't included in your estate. It's said to "pass outside the will." On the other hand, your share of property you own with someone in tenancyin-common will be included in your estate.
If you've designated a specific beneficiary to receive proceeds from certain assets, this asset won't be included in your estate, either. Common examples are life insurance policies or retirement benefit plans. When you die, the bank or trust company transfers the asset, or pays it out, to the beneficiary you named.
The proceeds of life insurance
Tip policies and benefit plans do not
form part of your estate. Even so, you can choose to name (or designate) a beneficiary of these kinds of assets either in your will, or in the policy itself. What happens if you change your mind and want a different person to receive the proceeds? Any new designation you make will replace any designations you made earlier.
Who you can leave your estate to
You're generally free to leave your estate to whomever you want. However, your spouse or child can dispute your will in court if they feel you haven't adequately provided proper maintenance and support.
The court can modify a will in the interest of fairness. The court considers factors such as the financial circumstances of the person challenging the will (and of the other beneficiaries), the size of the estate, and the relationship between the will-maker and their spouse or child.
Separated spouses cannot dispute your will. Other relatives who are left out also generally have no claim.

If you want to leave a spouse or child
Tip out of your will, explain this in a
separate document or letter you keep with your will. You need to show that you've at least considered them and your obligation to provide for them. This doesn't guarantee they won't receive something if they dispute the will in court. If you're considering this option, you should seek legal advice.
Wishes for funeral services, burial, or cremation
Most wills don't cover details relating to the funeral service, burial, or cremation. Some do. You should discuss your preferences with your executor or family. Be aware that any wishes you express about your desired funeral or memorial service will not be binding on the executor, even if expressed in your will.
If you write your preference for burial or cremation in your will, that preference is binding on the executor -- except if following it would be unreasonable, impracticable, or cause hardship. The same applies if you set out your preference in a contract for cemetery or funeral services. If you express your preference in another way, such as through a letter or simply telling a loved one, then that preference is not legally binding.
Preparing Your Will: Step-by-Step
Step 1. Choose your executor
Your will names a person, the executor, to carry out your instructions in the will.
Discuss your wishes with the
Tip executor, including your wishes for
organ donation, burial and cremation, and your funeral service.

Step 2. Write the will
With good do-it-yourself materials, you can write a simple will. The will can take care of basic concerns, such as leaving a home, investments, and personal items to loved ones. The Where To Get Help section below lists a number of do-it-yourself resources.
Having your will prepared by an experienced estates lawyer or notary public is the safest way to avoid mistakes. Knowing your will is properly drafted can give you peace of mind. You can be confident your affairs will be handled according to your wishes.
Getting advice from a lawyer or notary is particularly important when there are features such as a blended family, a charitable gift, property outside of British Columbia, a family business, a desire to hold property in trust for someone, or a wish to leave certain people out of your will.
Getting professional help to prepare
Tip a basic will isn't as expensive as some
people think. Ask an estates lawyer or notary how much it will cost. You should be able to get some free quotes. Feel free to shop around.
Step 3. Sign the will
For a will to be valid, it must be signed on the last page by the will-maker.
The signature must be witnessed
You must sign the will or acknowledge the signature as yours in front of two witnesses. The two witnesses must then sign the will in front of you. You and the witnesses should initial each page of the will in front of each other.
The witnesses don't need to read the will. All they need to do is watch you sign your name to it, and sign it themselves in front of you.
If you can't sign the will because of illness or disability, you can ask someone to sign it for

you. That person must sign the will in front of you, and in front of the two witnesses.
Who can be a witness to a will?
The two witnesses must be age 19 or over.
It's good practice for the witnesses not to be people -- or the spouses of people -- who are executors or beneficiaries under the will.
That said, a witness may be able to receive a gift under a will. The witness must apply to court and show you intended to make the gift to them. If the court isn't satisfied, the witness can't receive the gift. Either way, the remainder of the will isn't affected.
Step 4. Keep your will in a safe place
The original copy of your will is one of your most important documents. You should store it in a safe place that's fireproof, waterproof, and tamper-proof. Under the law, a lost will is considered to have been destroyed and cancelled.
Tell your executor where you keep
Tip your original will. They need to be able
to access it easily after your death.
Step 5. Register your will
You can choose to register your will with the provincial government's Wills Registry. While the law doesn't require this step, it's a good idea. It lets others know where the original copy of your will is kept.
To register your will, you need to file a Wills Notice with the Wills Registry. This is a form that says you've prepared a will and where it's kept. You don't provide a copy of the will to the Wills Registry, just the Wills Notice.

Changing or Cancelling a Will
You can change your will after you've prepared it
You should consider updating your will whenever your circumstances or wishes change. You can prepare a new will at any time. Or you can change the existing one by signing a separate document, called a codicil.
To be legal, the codicil has to meet the same requirements as a will. For example, it must be in writing, dated, and signed by you and two witnesses. You don't have to use the same two witnesses you used for your will. The codicil must refer to the will (and previous codicils) it's amending.
You can cancel your will
You can revoke, that is cancel, your will. You could simply destroy the original will, with the intention of cancelling it. However, it is better to make a written declaration revoking your will. This document must be signed the same way you signed your will -- by you with two witnesses looking on, and signing it themselves.
A new will normally cancels any previous will. Even so, it's common practice to include a revocation clause at the beginning of a will:
"I hereby revoke all my prior wills and codicils."
Getting married or divorced
Neither marriage nor divorce of the will-maker cancels a will. The exception is if you married before March 31, 2014 (after which, there was a change in the law), and made a will before you got married. The law says your will would have been cancelled when you got married, unless the will said it was made in contemplation of your marriage.

If you had a spouse at the time you made your will, and later separated from your spouse, your will is treated as if your spouse died before you. That is, any gift you left them will not be effective. As well, if you named your ex-spouse as your executor, the appointment would no longer be effective.
Common Questions
How is a will different from a power of attorney or representation agreement?
A will can only be used after you die. A power of attorney and a representation agreement are documents that can be used to handle your affairs while you're alive.
With a power of attorney, you can authorize someone to take care of financial and legal matters for you. With a representation agreement, you can name someone to assist you with health care and personal care matters. A representation agreement can also cover routine financial and legal matters.
What is a "living will"?
A "living will" is not a legal document in British Columbia. The term has been used to describe a person's wishes for their end-of-life medical care. In British Columbia, you can sign a representation agreement or an advance directive. Both documents can help with health care decisions you may face down the road, if you're not able decide independently.
Do I need to prepare a new will if I move between provinces?
It's always a good idea to prepare a new will if you move out of province. If someone dies in British Columbia but had a valid will in another province, the executor may be able act on the will. But the process may be more complicated.

Where to Get Help
Access Pro Bono
In-person clinic staffed by volunteer lawyers to help low-income seniors (ages 55+) and people with terminal illnesses prepare a will.
604-424-9600 www.accessprobono.ca/willsclinic
Clicklaw Online resource offers one-stop access to legal information, education, and help for British Columbians from trusted organizations. Select the topic "Wills & estates."
www.clicklaw.bc.ca
Law Students' Legal Advice Program Clinics Law students from the University of British Columbia offer free assistance to qualifying clients with some legal matters, including preparing some simple wills. The manual used by law students has a chapter on "Wills and Probate" that includes sample clauses for preparing a will.
604-822-5791 www.lslap.bc.ca
Lawyer Referral Service Service offering referrals to lawyers who can provide a half-hour consultation for $25. The lawyer will not be able to prepare a will for you in this time, but can answer initial questions you may have.
Lower Mainland: 604-687-3221 Toll-free: 1-800-663-1919

Nidus Personal Planning Resource Centre and Registry Nonprofit charitable organization that provides information, education, and support for people to prepare and use representation agreements and enduring powers of attorney.
info@nidus.ca www.nidus.ca
Public Guardian and Trustee of British Columbia Government office that may agree to be appointed executor in a will in appropriate circumstances. They may also administer an estate when the executor is unable or unwilling to do so.
700 - 808 West Hastings Street Vancouver, BC V6C 3L3 604-660-4444 www.trustee.bc.ca
Self Counsel Press Publisher of do-it-yourself guides on legal topics, including some guides on preparing a will in Canada.
www.self-counsel.com
Society of Notaries Public of BC A notary public can help you prepare a will. The Society of Notaries Public of BC offers a list of notaries in the province.
Lower Mainland: 604-681-4516 Toll-free: 1-800-663-0343 www.notaries.bc.ca

MyLawBC Online resource created by Legal Services Society, the agency that provides legal aid in BC. MyLawBC steers you in preparing a simple will through a set of questions. It also gives information on wills and personal planning documents such as powers of attorney and representation agreements.
mylawbc.com/paths/wills

Glossary
Advance directive: Written instructions about what health care a person wants or does not want in the future if a decision needs to be made and they're incapable of making it.
Assets: Anything a person owns that has value. Assets can include things such as money, land, investments, and personal belongings such as jewelry and furniture.
Beneficiary: A person who is to receive money or property in a will, benefit plan, or insurance policy.
Codicil: A legal document made after a will that changes some conditions in the will.
Estate: All of the property and belongings a person owns upon their death, with some exceptions. The estate does not include property owned with someone else jointly (such as a joint bank account) or property that has a designated beneficiary (such as an insurance policy).
Executor: The person named in a will to carry out the instructions in the will and settle the will-maker's affairs after they die.
Gift: A voluntary transfer of property from one person to another, with no expectation of payment or reward.
Joint tenancy: A way that property can be owned where each owner has the same interest in and an equal right to use the property. Usually, when one joint tenant dies, their share automatically passes to the other joint tenants.
Notary public: A legal professional authorized to provide certain non-contentious legal services to the public. For example, a notary public can prepare wills and powers of attorney, and notarize signatures on documents.

Power of attorney: A legal document that enables an adult to give another person (or more than one person) the authority to make financial and legal decisions for them.
Probate: A legal procedure to confirm that a will is valid and can be acted on. It allows financial institutions and others to rely on the will as being the last will made by the deceased.
Public Guardian and Trustee: A public body established by law to protect the interests of British Columbians who lack legal capacity to protect their own interests.
Representation agreement: A legal document to authorize someone to assist an adult or act on their behalf for health and personal care matters. It can also cover routine financial and legal matters.
Residue: Whatever is left over in an estate after the executor pays all the debts and expenses and distributes any specific gifts.
Spouse: Person the will-maker was married to, or lived with in a marriage-like relationship for at least the two years prior to the will-maker's death.
Tenancy-in-common: A way property can be owned where each owner holds a separate and distinct interest in the property. When a tenantin-common dies, their share of the property is included in their estate.
Trust: A form of possession of property in which a person (the trustee) holds property for the benefit of another person (the beneficiary).
Will: A legal document that gives instructions about who should receive the property of the will-maker after they die, and on what conditions.
Will-maker: A person who prepares and signs a will.

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