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Difference between revisions of "Preparing a Will and Estate Planning"
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Preparing a Will and Estate Planning (view source)
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{{Dial-A-Law TOC|expanded = wills}} | {{Dial-A-Law TOC|expanded = wills}} | ||
This script explains '''wills'''. | This script explains '''wills''' and '''estate planning'''. Wills are a key part of personal planning. Other parts of personal planning involve '''powers of attorney''', '''enduring powers of attorney''', and '''representation agreements'''. Script [[Power of Attorney and Representation Agreements (Script 180)|180]] covers these topics. | ||
For information on what happens if a person becomes mentally incapable and has not done any personal planning, see script [[Committeeship (Script 426)|426]] on ''committeeship''. For more information on '''wills''', see scripts [[What Happens When You Die Without a Will? (Script 177)|177]] to [[The Disappointed Beneficiary (Script 179)|179]]. | For information on what happens if a person becomes mentally incapable and has not done any personal planning, see script [[Committeeship (Script 426)|426]] on ''committeeship''. For more information on '''wills''', see scripts [[What Happens When You Die Without a Will? (Script 177)|177]] to [[The Disappointed Beneficiary (Script 179)|179]]. | ||
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==The executor== | ==The executor== | ||
You have to appoint an executor in a will. They have to: | You have to appoint an executor in a will. They have to: | ||
*deal with your remains and funeral | |||
*safeguard the estate (for example, change the house insurance if the house is unoccupied or keep any vehicle insured) | *safeguard the estate (for example, change the house insurance if the house is unoccupied or keep any vehicle insured) | ||
*gather up your assets | *gather up your assets | ||
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==What if you don’t make a will?== | ==What if you don’t make a will?== | ||
If you don’t have a will, your net estate is distributed to your next of kin under the ''[http://www.bclaws.ca/civix/document/id/complete/statreg/09013_01 Wills, Estates and Succession Act]'' (WESA). Script [[What Happens When You Die Without a Will? (Script 177)|177]] “What Happens When You Die without a Will?” has more on this. | If you don’t have a will, your net estate is distributed to your qualifying next-of-kin or the provincial government under the ''[http://www.bclaws.ca/civix/document/id/complete/statreg/09013_01 Wills, Estates and Succession Act]'' (WESA). Script [[What Happens When You Die Without a Will? (Script 177)|177]] “What Happens When You Die without a Will?” has more on this. | ||
==It’s important to make a will properly== | ==It’s important to make a will properly== | ||
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==Your will can be changed after you die== | ==Your will can be changed after you die== | ||
If your will doesn’t properly provide for your spouse or children | If your will doesn’t properly provide for your spouse or children (including illegitimate and adopted children) they can sue under WESA to have your will varied or changed by the BC Supreme Court. Script [[The Disappointed Beneficiary (Script 179)|179]] has more on this. A spouse includes both a married spouse and a person you have lived in a marriage-like relationship with for 2 years before your death. | ||
Courts and WESA are clear that people have both a legal and moral obligation to provide for a spouse or child in a will. If you’re thinking of disinheriting a spouse or child (even a self-sufficient, adult child), or leaving them less than they might reasonably expect, or, in the case of a child, less than their siblings, see a lawyer before finalizing your will. The courts may change what your will gives to your beneficiaries. | Courts and WESA are clear that people have both a legal and moral obligation to provide for a spouse or child in a will. If you’re thinking of disinheriting a spouse or child (even a self-sufficient, adult child), or leaving them less than they might reasonably expect, or, in the case of a child, less than their siblings, see a lawyer before finalizing your will. The courts may change what your will gives to your beneficiaries. | ||
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The Probate Registry of the Supreme Court decides the estate value based on documents filed by the executor. Probate fees can often be avoided or reduced by estate planning outside of a will, and a lawyer can help with that planning. | The Probate Registry of the Supreme Court decides the estate value based on documents filed by the executor. Probate fees can often be avoided or reduced by estate planning outside of a will, and a lawyer can help with that planning. | ||
== | ==Your estate may have to pay taxes== | ||
When a person dies, the law assumes that they sold all their assets on the '''date immediately before their death'''. If the assets increased in value since they were bought, a capital gains tax will have to be paid for the same year as the person’s death. There are some exceptions, such as gifts to spouses and principal residences, but if you own assets that will be subject to capital gains tax on your death, you should speak to a lawyer or an accountant to see how to deal with this tax. For example, a recreational property in your name alone will normally be subject to capital gains tax. | When a person dies, the law assumes that they sold all their assets on the '''date immediately before their death'''. If the assets increased in value since they were bought, a capital gains tax will have to be paid for the same year as the person’s death. There are some exceptions, such as gifts to spouses and principal residences, but if you own assets that will be subject to capital gains tax on your death, you should speak to a lawyer or an accountant to see how to deal with this tax. For example, a recreational property in your name alone will normally be subject to capital gains tax. | ||
== | ==Estate planning to reduce probate fees and taxes== | ||
With estate planning, you may be able to reduce probate fees and taxes that your estate would otherwise pay. Consider, for example, the following: | With estate planning, you may be able to reduce probate fees and taxes that your estate would otherwise pay. Consider, for example, the following: | ||
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It depends on how complex your situation is. Most lawyers charge a fee that reflects the time, skill and responsibility involved. Discuss the fees with your lawyer when you call to arrange a meeting. | It depends on how complex your situation is. Most lawyers charge a fee that reflects the time, skill and responsibility involved. Discuss the fees with your lawyer when you call to arrange a meeting. | ||
==You can minimize | ==You can minimize legal fees by preparing well== | ||
It helps if you have the following information ready before you meet with your lawyer: | It helps if you have the following information ready before you meet with your lawyer: | ||
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==Filing a wills notice== | ==Filing a wills notice== | ||
You can file a wills notice with the [ | You can file a wills notice with the [https://www2.gov.bc.ca/gov/content/life-events/death/wills-registry Wills Registry] of the [https://www2.gov.bc.ca/gov/content/family-social-supports/seniors/health-safety/health-care-programs-and-services/vital-statistics Vital Statistics Agency]. A wills notice says who made the will and where it is kept. This is a voluntary registration and has a small filing fee. The Vital Statistics Agency doesn’t take a copy of your will. You or your lawyer fill out an information form listing where your will is kept. After a person dies, a search of the Wills Registry is required for the court probate process to ensure the court has the last will. | ||
==Where should you keep your will?== | ==Where should you keep your will?== | ||
Keep the original will with your lawyer or in a safety deposit box at your bank so that you have a permanent, safe and fireproof location. Your executor will need your original will (not a copy) to give to the Probate Registry. You should let your executor know where you keep your will and other important documents, so they know where to get it. | Keep the original will with your lawyer or in a safety deposit box at your bank so that you have a permanent, safe and fireproof location. Your executor will need your original will (not a copy) to give to the Probate Registry. You should let your executor know where you keep your will and other important documents, so they know where to get it. | ||
==Wills made in other provinces== | |||
If you made a will in another province and now live in BC, your will may work in BC. You need to see a lawyer to find out. | |||
==Blended families== | |||
People in blended families need legal help to ensure their will meets legal requirements to make adequate provision for their spouse and children. | |||
==Handwritten wills== | |||
Handwritten wills are valid if they are properly signed and witnessed. Even if the will is not made properly, a court may be able to fix it, but this can be expensive. | |||
==What is LEAVE A LEGACY™?== | ==What is LEAVE A LEGACY™?== | ||
LEAVE A LEGACY™ is a public awareness program of the [http://www.cagp-acpdp.org/ Canadian Association of Gift Planners]. Its objective is to promote, through the media and educational sessions for the public, the importance of preparing a will. It also raises awareness about leaving a gift for charity in the will. | [https://www.cagp-acpdp.org/en/leave-a-legacy LEAVE A LEGACY™] is a public awareness program of the [http://www.cagp-acpdp.org/ Canadian Association of Gift Planners]. Its objective is to promote, through the media and educational sessions for the public, the importance of preparing a will. It also raises awareness about leaving a gift for charity in the will. | ||
==More information== | ==More information== | ||
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[updated | [updated October 2018] | ||
'''The above was last reviewed for accuracy by Hugh McLellan and edited by John Blois.''' | '''The above was last reviewed for accuracy by Hugh McLellan and edited by John Blois.''' | ||
