This script explains '''wills''' and '''estate planning'''. Wills are Preparing a will is a key part of personal step in planningfor what happens when you pass away. Other parts Learn the essentials of personal planning involve '''powers of attorney''', '''enduring powers of attorney''', preparing a will and '''representation agreements'''. Script [[Power of Attorney and Representation Agreements (Script 180)|180]] covers these topicstips for creating an estate plan.

==What =A will is a will?legal document===A '''will ''' is a document that says what you want done with your property when you die. Examples of property that wills deal with include real estate, money, investments, and personal and household belongings that you own. You can change your will at any time. A will has no legal effect until you die.

===Why you should you make prepare a will?===Every adult who owns assets or has a spouse or young children should have a will. But surprisingly, many people don’t. The few hours that you spend with preparing a lawyer will and planning your estate could save your spouse, children, and other beneficiaries much time, effort, and money. If you don’t have a will, you lose control over who gets how much of your estate money and property, and when. You also give up the right to appoint a guardian for any young children you have. And the costs to administer your estate will be much higher.

===A will doesn’t deal with some types of property===A will generally doesn’t cover property that you don’t own exclusively. For example, a joint bank account or a house owned in joint tenancy has a “right “'''right of survivorship'''”.” That means that they automatically become the exclusive property of the joint survivor when you die(we explain some exceptions to this rule shortly). Also, a will does not apply to property like life insurance, RRSPsretirement savings plans and income funds, RRIFs and TFSAs tax-free savings accounts if you have already named a beneficiary for them.

==A =If you don’t prepare a will is only one part of estate planning===You can transfer property If you don’t have a will, your net estate is distributed to beneficiaries outside your qualifying next-of -kin or the provincial government under the ''[https://www.canlii.org/en/bc/laws/stat/sbc-2009-c-13/latest/sbc-2009-c-13.html Wills, Estates and Succession Act]''. Our information on [[What Happens When You Die Without a Will? (Script 177)|what happens when you die without a will, without taxes and other costs(no. This is called estate planning, explained later 177)]] explains this in this scriptmore detail.

==The executor=A will is only one part of estate planning===You have With ''estate planning''', you may be able to appoint an executor in a will. They have to:*deal with reduce fees and taxes that your remains and funeral*safeguard the estate (would otherwise pay. Consider, for example, change the house insurance following strategies. ====Joint assets===='''Joint assets''' can include a joint bank account that two or more people own, or a home owned by two or more people as joint tenants. The owners of joint assets have a “right of survivorship”. This means that when one person dies, the other joint owners own the asset. So if you and another person own a home as joint tenants, the house surviving joint owner will get the home when you die. The home is unoccupied or keep any vehicle insured)*gather up said to '''pass outside your assets*pay will'''. No probate fees have to be paid by your debts estate for the home (including taxes)*divide what remains probate fees are paid to the court based on the value of your the estate among assets). If the people named in home is your principal residence, no tax will to receive a share of be paid by your estate—they are called beneficiariesestate.

==How should you choose an executor?==Choose someone you trust and who will likely Note that in several recent cases, courts have ruled that a jointly-owned asset had to be alive when you diereturned to the estate. They may be If your joint asset is not with your spouse or a trusted family member or friend. Often, people appoint their spouse, minor child but if you are both old, instead with an adult child or children other adult, then that joint holder may be betteractually own the asset in trust for you. It helps if they are well organized, good at keeping recordsIn practice, this means that the asset is returned to your estate and good communicators. Most importantly, they must be willing distributed according to be an executoryour will.

If This can be avoided by clear documentation showing that, when the person (say, your adult child) became a joint owner with you, you intended to give the property to them after you die. For example, if you have add an adult son to your bank account as a second or blended family with stepchildrenjoint holder and you want the account to belong to him when you die, you should see sign a lawyer to ensure '''deed of gift'''. Otherwise, the law may assume that your son holds the wishes of both you bank account in trust for your estate and the money will be paid out under your spouse are followedwill. Your will does not It is very common for an older person to have a joint account with one of their children to be help them manage their affairs while they’re alive, on the understanding that the same as your spouse’s, but it account is important to consider being held in trust for all aspects of your family situationthe children, when the parent dies.

You can appoint more than one executor ====Assets with a designated beneficiary====Registered retirement savings plans, registered retirement income funds, and they can act together as co-executors. You should also appoint an alternate executor if tax free savings accounts all let you name a '''beneficiary''' to get the first executor cannot actproceeds when you die. If you have name a complex estate or investments or need someone beneficiary and they survive you by at least five days, the proceeds go outside your will to take over them. For example, a beneficiary will get the operation of money in a registered retirement savings plans directly from the companyholding the plan, you should name a professional executor who may be a lawyer, accountant or other professional. Trust companies can also be executor if and not from the estate is big enough. Professionals and trust companies charge for their services.

==If you have minor children, appoint a guardian in your will==Life insurance policies====If you’re Life insurance policies let you name a parent or guardian of a minor child (under 19 years old)beneficiary to receive money at your death. Again, this money passes outside your will and does not go through the ''[http://wwwestate.bclaws.ca/civix/document/id/complete/statreg/11025_01 Family Law Act]'' lets you appoint someone This means the life insurance funds are not used to be pay off the debts of the child’s guardian in your willestate.

It’s important to name a guardian if you’re a single parent. For separated parents, it’s best to agree ====Trusts====Depending on the choice size of your estate, you may want to set up a guardian if one or both '''trust''' (outside of you die. If that’s not possible, it’s important the will) to consider protect your parenting responsibilities (through estate against a court order or separation agreement) and ensure that you include them as part of appointing a guardian in your willwills variation claim. We explain wills variation claims shortly.

Although your choice of guardian is important, the court doesn’t have to follow your wishes and may appoint a different guardian if it would be in ====Charitable gifts====You can reduce the child’s best interests. And income tax owing from the court will consider the wishes sale of any child 12 or older. So you should check with an older child about their wishes before deciding your assets on who to name as guardian your death by making charitable gifts in your will.

The guardian’s job is to look after your minor children, and they may in turn appoint ==Preparing a replacement guardian. But the guardian generally doesn’t have any rights to look after a minor child’s property—the guardian can only receive and hold a minor child’s property or money if it’s worth less than $10,000. So you should appoint a trustee to manage a minor child’s inheritance. The executor can be the same person as the trustee.will==

==What if you don’t make a will?=It’s important to get it right===If With good do-it-yourself materials, you don’t have can write a simple will. The will can take care of basic concerns, such as leaving a home, investments, your net estate is distributed and personal items to your qualifying next-of-kin or loved ones. You should be aware there are rules and formalities that must be followed, no matter how simple the provincial government under the ''[http://wwwwill.bclaws.ca/civix/document/id/complete/statreg/09013_01 WillsOtherwise, 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 thisthe will may not be valid.

==It’s important A will is a legally binding document. Having your will prepared by an experienced estates lawyer or notary public is the safest way to make a avoid mistakes. Knowing your will is properly==drafted can give you peace of mind. You should have can be confident your affairs will professionally prepared, as a will is a binding legal documentbe handled according to your wishes. To make an effective will requires a good understanding of property ownership rules and the law about wills. There are rules and formalities that must be followed, no matter how simple the will. Otherwise, the will may not be valid. Also, the The words used must be chosen carefully so that the will is clear and unambiguous. If the formalities are ignored or the terms of the will are unclear, there will may be extra legal costs for your estate to get court orders to fix the problems— and in some cases, and that may not even be entirely possible.

==Your will can be changed after you die==If your will doesn’t properly provide Getting advice from a lawyer or notary public 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 your spouse or children someone (including illegitimate and adopted such as minor children) they can sue under WESA , or a wish to have leave certain people out of 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 ===You must appoint an executor in your will===You have both a legal and moral obligation to provide for a spouse or child appoint an '''executor''' in a will. If you’re thinking of disinheriting a spouse or child An executor needs to:*deal with your remains and funeral*safeguard the estate (even a self-sufficientfor example, adult child)change the home insurance if the home is unoccupied, or leaving them less than they might reasonably expect, or, in the case keep any vehicle insured)*gather up your assets*pay your debts (including taxes)*divide what remains of a child, less than their siblings, see a lawyer before finalizing your will. The courts may change what estate among the people named in your will gives to receive a share of your estate — these people are called '''beneficiaries. '''

If ===Qualities to look for when choosing an executor===Choose someone you trust and who will likely be alive when you have die. They may be a disabled trusted family member or friend. Often, people appoint their spouse, but if you are both old, an adult childor children may be better. It helps if your executor is well organized, good at keeping records, and do not leave enough for thema good communicator. Most importantly, the Court may order that they receive more from must be willing to do the estatejob as executor.

==Your estate may have to pay probate fees=You can appoint more than one executor===Probate is a process to prove a will is legally valid. An You can appoint more than one executor must apply to BC Supreme Court to confirm that a will is legally valid. The word “probate” means “proof”. The Court will prove that the will is validand they can act together as '''co-executors'''. The following probate filing fees must be paid It’s important to appoint an '''alternate executor''', who can take over if the court registryfirst executor can no longer act. If the estate is worth:

*less than $25,000—no fee*If you have a complex estate or investments or need someone to take over $25the operation of a company,000—basic fee of $208*between $25consider naming a professional executor,000 and $50who may be a lawyer,000—basic fee of $208 plus $6 per $1accountant,000 ( $358 for or other professional. Trust companies can also be executor if the first $50,000)*over $50,000—$358 plus $14 per $1,000 of estate value over $50,000is big enough. Professionals and trust companies charge for their services.

These fees can change. Details are ===If you have minor children, appoint a guardian for them in your will===If you’re a parent or guardian of a minor child (under 19 years old), the ''[httphttps://www.bclawscanlii.caorg/civixen/documentbc/idlaws/completestat/statregsbc-2011-c-25/00_99004_01 Probate Fee latest/sbc-2011-c-25.html Family Law Act]'' and lets you appoint someone to be the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_06 Supreme Court Civil Rules]child’s '''guardian''' in your will.

Probate fees are usually just It’s important to name a guardian if you’re a single parent. For separated parents, it’s best to agree on the choice of a guardian if one or both of you die. If that’s not possible, it’s important to consider your parenting responsibilities (through a small court order or separation agreement) and ensure that you include them as part of appointing a guardian in your will. Although your choice of guardian is important, the court doesn’t have to follow your wishes and may appoint a different guardian if it would be in the child’s best interests. The court will consider the total cost wishes of the processany child 12 or older. There can be legal fees, fees So you should check with an older child about their wishes before deciding on who to transfer assets from one name as guardian in your will. ====The guardian’s role====The guardian’s job is to anotherlook after your minor children, and other coststhey may in turn appoint a replacement guardian. But the guardian generally doesn’t have any rights to look after a minor child’s property — the guardian can only receive and hold a minor child’s property or money if it’s worth less than $10,000. So you should appoint a '''trustee''' to manage a minor child’s inheritance. The executor can be the same person as the trustee.

The Probate Registry of the Supreme Court decides the ====Create a trust for a minor child’s interest====Make sure your will is written so that a child under 19 won’t have direct access to their share until they’re 19 or beyond. If a minor is entitled to a share in an estate value based on documents filed by , and the executorwill doesn’t say that their share is going to be held in '''trust''' for them, [http://canlii. Probate fees can often ca/t/52x69#sec153 the law] says their share has to be avoided or reduced by estate planning outside of a will, paid to the '''Public Guardian and Trustee''' to be held in trust for the minor until they’re 19 years old. It’s best to speak to a lawyer can help with that planningabout drafting a trust.

==Your estate may have to pay taxes=You can minimize legal fees by preparing well=== When It helps if you have the following information ready before you meet with a person dieslawyer or notary public about preparing your will:*A list of everyone in your immediate family, with their full names and contact information, their relationship to you, and the law assumes that they sold ages of all your children, including stepchildren.*The names and addresses of any other people or organizations you want to give gifts to. *A list of all your '''assets''' and their values, including your home, car, investments, and any personal items of significant monetary value. *A description of how you own these assets (for example, alone or with someone else).*A document that shows whose name is on the title of any real estate you own.*Details of any insurance policies you own, and, specifically, the '''date immediately before their deathbeneficiaries'''under the policy. If the assets increased in value since they were bought*Details of any pensions, retirement savings plans or income funds, a capital gains and tax will have to be paid for -free savings accounts, and who the same year as beneficiaries are.*Information on the person’s death. There are some exceptions, such as gifts to spouses and principal residences, but if structure of any business you own assets that will be subject to capital gains tax on your deathoperate (for example, a company or partnership).*Any separation agreements or court orders requiring you should speak to a lawyer make support payments or an accountant to see how to deal dealing with this taxguardianship of any minor children. For example*The name, address, a recreational property in and occupation for your name alone will normally be subject to capital gains tax'''executor''' and '''guardian'''.

==Estate planning to reduce probate fees and taxes=Filing a wills notice===With estate planning, you may be able to reduce probate fees 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 taxes that has a small filing fee. Vital Statistics doesn’t take a copy of your will. You or your estate would otherwise paylawyer or notary fill out an information form listing where your will is kept. ConsiderAfter a person dies, a search of the Wills Registry is required for example, the following:court probate process to ensure the court has the last will.

*'''Joint assets''': the owners of joint assets, such as a joint bank account ===You should review your will to make sure it still reflects your wishes===It’s good to review your will every three to five years to ensure that two or more people own, or a house owned by two or more people as joint tenants, have a “right of survivorship”it still reflects your current wishes. This means that when one person dies, the other joint owners own the asset. So if you and another person own a house as joint tenants, the surviving joint owner will get the house when you die. The house passes outside You should still consider changing your will. No probate fees have to be paid by whenever your estate for the housefinancial or personal circumstances change, and or if beneficiaries die or reach the house is your principal residence, no tax will be paid by your estateage of majority.

:But in several recent casesFor example, courts have ruled that if you prepared a jointly-owned asset had to be returned to the estate. If will when your joint asset is not with children were young and named your spouse or a minor child but instead with an adult child or other adultparents as guardian and executor, then that joint holder may actually own you’ll no longer need the asset in trust for you. This can be avoided by clear documentation showing that, guardian clause when they your children become a joint owner with you, you intend to give the property to them after you dieadults. For example, if And you add an may want your adult son to your bank account as children or a joint holder and you want the account sibling to belong to him when you die, you should sign a deed of gift. Otherwise, the law may assume that your son holds the bank account in trust for your estate and the money will be paid out under your will. It is very common for an older person to have a joint account with one of their children on the understanding that the account is being held in trust for all the children, when the parent diesexecutor instead.

*'''RRSPs===Review your will after any change in your marital status===If you married before March 31, RRIFs 2014 (when a new wills and TFSAs''': Registered Retirement Savings Plans (RRSPestates law came into effect), Registered Retirement Income Funds (RRIF) and Tax Free Savings Accounts (TFSA) all let you name a beneficiary to get the proceeds any will made before marriage was automatically cancelled when you die. If you name a beneficiary and they survive you by at least 5 daysmarried, unless the proceeds go outside will said it was made in contemplation of your will to themmarriage. For exampleAfter March 31, an RRSP beneficiary will get the money in the RRSP directly from the company holding the RRSP2014, and a marriage does not from the estaterevoke — that is, cancel — a will.

*'''Life Insurance policies''': life insurance policies let If you name divorced before March 31, 2014, the portions of your will that appoint your ex-spouse as an executor and make a beneficiary gift to receive money them are not valid. Any divorce after March 31, 2014 will mean that the appointment or gift won’t be valid if:*you’ve lived separate and apart for at least two years before your death. Again(and one or both of you intended to live separately and apart permanently),*before you die, this money passes outside your will and does not go through the estate; this means an event occurs that causes an interest in family property to arise (under the life insurance funds are not used to pay off ''Family Law Act''), or*in the debts case of a marriage-like relationship, one or both of you end the estaterelationship before you die.

*'''Trusts''': depending on the size of your estate, ==After you may want to set up a trust, to protect your estate against a wills variation claim.pass away==

*===Your will can be changed after you die===If your will doesn’t properly provide for your spouse or children (including illegitimate and adopted children), they can request to have your will changed by a court. This is called a '''Charitable giftswills variation claim''': you can reduce the income tax owing from the sale of your assets . Our information on your death by making charitable gifts [[The Disappointed Beneficiary (Script 179)|challenging a will (no. 179)]] explains this in your willmore detail.

==You should hire A '''spouse''' includes both a lawyer to help married spouse and a person you==An experienced lawyer will know the rules that apply to wills and can help have lived in a marriage-like relationship with estate planning to save money for two years before your beneficiaries, giving you the peace of mind of knowing that your will is properly drafted and valid, and that your estate will be paid out as you wishdeath.

==How much does The law is clear that people have both a legal and moral obligation to provide for a spouse or child in a will cost?==It depends on how complex your situation is. Most lawyers charge If you’re thinking of disinheriting a fee that reflects spouse or child (even a self-sufficient, adult child), or leaving them less than they might reasonably expect, or, in the timecase of a child, less than their siblings, skill and responsibility involved. Discuss the fees with see a lawyer before finalizing your lawyer when you call to arrange a meetingwill.

==You can minimize legal fees by preparing well==It helps if If you have a disabled adult child, and do not leave enough for them, the following information ready before you meet with court may order that they receive more from your estate. A lawyer:can help draft an appropriately worded '''trust''' for a disabled adult child.

*A list of everyone in your immediate family with their full names and contact information===Your estate may have to pay probate fees===With most estates, their relationship an executor must apply to court to you, and '''probate''' the ages of all your children, including stepchildrenwill.*The names and addresses of any other people or organizations you want to give gifts toword “probate” means “proof”. *A list of all your assets and their values, including your home, car, investments, and any personal items of significant monetary valueThe process proves the will is legally valid. *A description Our information on the duties of how you own these assets the executor (no. 178) explain the process. In applying for exampleprobate, alone or with someone else)'''probate fees''' must be paid to the court registry.*A document that shows whose name is The fees depend on how much the title of any real estate you own.is worth:*Details of any insurance policies you ownless than $25, and, specifically000 — no fee*over $25, who the beneficiary 000 — basic fee of the policy is.$208*Details of any pensions, RRSPsbetween $25, RRIFs 000 and TFSAs$50, and who the beneficiaries are.*Information on the structure 000 — basic fee of any business you operate $208 plus $6 per $1,000 ($358 for examplethe first $50, a company or partnership000).*Any separation agreements or court orders requiring you to make support payments or dealing with guardianship of any minor children.*The nameover $50, address000 — $358 plus $14 per $1, and occupation 000 of your choice for your executor and guardian.estate value over $50,000

==Update your estate plan==A wellThese fees can change. Details are in the ''[https://www.canlii.org/en/bc/laws/stat/sbc-1999-c-4/latest/sbc-1999-c-drafted will plans for various possibilities (since it’s impossible to predict 4.html Probate Fee Act]'' and the future)[https://www. Things such as what happens if an adult child or grandchild dies before youcanlii. But you should still consider changing your will whenever your financial or personal circumstances change, or if beneficiaries die or reach the age of majorityorg/en/bc/laws/regu/bc-reg-168-2009/latest/bc-reg-168-2009.html?searchUrlHash=AAAAAQAZc3VwcmVtZSBjb3VydCBjaXZpbCBydWxlcwAAAAAB&resultIndex=1 Supreme Court Civil Rules].

For example, if you made Probate fees are usually just a will when your children were young and named your parents as guardian and executor, you’ll no longer need small part of the total cost of the guardian clause when your children are adultsprocess. And you may want your children or a sibling to There can be executor instead. It’s good legal fees, fees to review your will every three transfer assets from one name to five years to ensure that it still reflects your current wishesanother, and other costs.

==Review your will after any change in your marital status==If you married before March 31, 2014, when WESA came into effect, your will made before marriage was automatically revoked, unless The probate registry of the BC Supreme Court decides the estate value based on documents filed by the will said it was made in contemplation executor. Probate fees can often be avoided or reduced by estate planning outside of your marriage. After March 31, 2014, a marriage does not revoke a will. It is now more important than ever to ensure A lawyer can help with that you make a will to include everyone that you want to share in your estateplanning.

===Your estate may have to pay taxes=== When a person dies, the law assumes they sold all their assets on the date immediately before their death. If you divorced before March 31the 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 (even if the property is not actually sold). There are some exceptions, 2014such as gifts to spouses and principal residences, the portions of your but if you own assets that will that appoint be subject to '''capital gains tax''' on your ex-spouse as death, you should speak to a lawyer or an executor and make a gift accountant to see how to them are not validdeal with this tax. Any divorce after March 31For example, 2014 a recreational property in your name alone will mean that the appointment or gift won’t normally be valid if:subject to capital gains tax.

==Filing a wills notice=Where should I keep my will?===You can file Keep the original will with your lawyer or notary, or in 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]deposit box at your bank. A wills notice says who made That way the will and where it is kept. This is in a voluntary registration permanent, safe, and has a small filing feefireproof location. The Vital Statistics Agency doesn’t take Your executor will need your original will (not a copy of your will) to give to the probate registry. You or should let your lawyer fill out an information form listing executor know where you keep your will is kept. After a person diesand other important documents, a search of the Wills Registry is required for the court probate process so they know where to ensure the court has the last willget it.

==Where should you keep your =How much does a willcost?===Keep the original will with It depends on how complex your lawyer or in situation is. Most lawyers and notaries charge a safety deposit box at your bank so fee that you have a permanentreflects the time, skill, safe and fireproof locationresponsibility involved. Your executor will need Discuss the fees with your original will (not lawyer or notary when you call to arrange a copy) to give to the Probate Registrymeeting. You should let your executor know where you keep your will and other important documents, so they know where be able to get itfree quotes. You can shop around and compare prices.

==Wills =What if I made a will in other provincesanother province?===

==Blended familiesGet help==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=With preparing a will===Handwritten wills are valid if they are properly signed and witnessedA notary public can help you prepare a will. The '''Society of Notaries Public of BC''' offers a list of notaries in the province. Even if :Telephone: 604-681-4516 in the will is not made properly, a court may be able to fix it, but this can be expensiveLower Mainland:Toll-free: 1-800-663-0343:Web: [https://www.notaries.bc.ca/ notaries.bc.ca]

==What '''MyLawBC''' is LEAVE A LEGACY™?==an online resource from 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.:Web: [httpshttp://wwwmylawbc.cagp-acpdpcom/paths/wills mylawbc.orgcom/enpaths/leavewills] '''Access Pro Bono''' offers an in-person clinic in Vancouver staffed by volunteer lawyers to help low-income seniors (ages 55+) and people with terminal illnesses prepare awill. :Telephone: 604-424-legacy LEAVE A LEGACY™] is a public awareness program of the 9600:Web: [http://www.cagp-acpdpaccessprobono.ca/willsclinic accessprobono.orgca/ Canadian Association willsclinic] ===More information===The '''Nidus Personal Planning Resource Centre & Registry''' has detailed information on all aspects of Gift Planners]. Its objective is to promotepersonal planning, including fact sheets, forms, through the media and educational sessions for the public, the importance of preparing a willvideos. :Web: [http://www.nidus. It also raises awareness about leaving a gift for charity in the willca/ nidus. ca]

'''The above was last reviewed for legal accuracy by [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan and edited by John Blois], McLellan Herbert.''' ----