I am always surprised by how many people I meet who have not yet got around to making a Will. This post, prepared by Patricia, is intended to help you think about why, if you do not have a Will or if it is out-of-date because your personal situation has changed, you should make a Will or update your old one:
A Will is a document that enables the assets that you own solely in your name at the time of your death to be distributed as you wish.
What are some of the possible consequences of dying without a Will?
The court will appoint an Administrator to manage your estate as opposed to the Executor you would have named.
- You lose control over how your estate will be distributed and to whom. Without a Will your wishes may not be carried out and your property may not go to the people you wish it to go to.(you will have died “intestate” and the rules of intestacy will apply to determine who shares in your estate)
- If you are a parent of a minor child and the other parent is not alive you are unable say who you wish to be the ‘guardian’ of your children. The court will appoint a guardian.
- You lose the ability to dictate how, when, and how much of your estate will be distributed to your child. Instead, the Public Guardian and Trustee (“PGT”) becomes the trustee and holds any share of the child’s interest in your estate in ‘trust’ until the child reaches the age of 19. This creates a hardship on whoever is the guardian of the child as they have to apply to the PGT for day-to-day expenses. When the child turns 19 they can demand the PGT release all the funds to them freely.
- Your estate will be divided pursuant to the Estate Administration Act (this Act is likely to be replaced by the new Wills, Estates and Succession Act, S.B.C. 2009, c. 13, in early 2013 so please check back then for an update).
- If you own a home solely, your spouse will have a ‘life interest’ thereby enabling them to use it for life and delaying the distribution of this asset.
- If you have a spouse, which includes a common-law spouse, your spouse receives the first $65,000.00 of your estate.
- If you have a spouse and child, after your spouse receives the first $65,000.00, your spouse and child share the remainder of the estate equally.
- If you have more than one child, 1/3 of your estate goes to your spouse and the remainder of the estate is divided equally among your children. Any lineal descendent children outside the marriage are treated the same as children in the family. Step-children are excluded.
- If you do not have children, then your spouse gets everything.
- If you do not have a spouse (a spouse is someone to whom you are still married at the time of your death), the estate goes to your children. If any of your children have predeceased you then their share passes to their children equally.
- If you have no children or grand-children then your parents, or the survivor of them, get your estate.
- If your parents have predeceased you then the estate goes to your siblings. If any of your siblings have predeceased you then their share passes equally to their children.
- If all of your siblings have predeceased you then your estate is divided equally among your nieces and nephews. If you do not have nieces or nephews then a further search of family connections is done.
As you can see from this long complicated list, having a Will gives you peace of mind that the property you worked so hard to accumulate will go to your loved ones. A Will can also address special bequests of specific items. This may be something close to your heart or that special ‘item’ you have promised someone. Having your wishes in writing enables your personal representative to administer your estate much more easily.
A Will can be as simple or as complex as you want it to be. Providing detailed Will instructions allows for a review of your potential estate. Advice can then be provided on how to minimize costs associated with probating and administering your estate.
Not only should you have a Will, but it is extremely important that you keep your Will up to date. Changes in your personal life, such as a marriage, divorce or the death of a loved one that you have provided for in your Will may lead to different results than the ones you intended after your death. In such circumstances, you should amend your Will either by the creation of a codicil or by a new Will.
Contact us if you have any questions or if you would like to make or update your Will.
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