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In a will, you leave instructions on how to distribute all your property. It's your statement on who and what is important to you. Proper planning also allows you to save on taxes and probate fees, and name guardians for your minor children. Despite its importance, however, an alarming 49 per cent of Canadians do not have a will.
Without a will, your estate will be divided up in accordance with BC's Estate Administration Act. This may result not only in unintended beneficiaries, but also additional, unnecessary, tax burdens.
See also "What happens if I don't have a will?"
In planning a will, you need to decide who will be your executor, who will get what, and when will they get it. You may also need to think about choosing guardians, tax planning, and other considerations.
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Executors and Guardians
An executor (male) or executrix (female) takes control of your estate after you pass away. That person collects all your assets, pays off all your debts, files final tax returns, and then divides the estate according to your will. He or she is extremely important and must be chosen with care.
See Probate Law on distributing an estate.
How should I choose an executor? If you have children under the age of 19, you should select one or more guardians. Consider:
Both executors and guardians bear heavy responsibilities. Before appointing them, you should get their consent. While this is not legally required, it avoids the problems caused by their refusing to take on the job when needed.
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You can name anyone you wish to be a beneficiary. For individuals under the age of 19, the executor must hold on to that person's share until he or she turns 19, or meets other conditions set out in the will.
Common beneficiaries are: spouses, children, and charities.
In many cases, your spouse is also the executor or executrix. If you do not provide adequately for your spouse, he or she could apply under the Wills Variation Act to vary the will when it's time to distribute the estate.
You may want to give your estate to your children in stages. Remember what you were like when you were 19? Some parents fear that their children won't be able to manage their inheritance.
That's why lawyers often recommend that a portion be released at the ages of 19, 21, and 25; or 21, 25, and 30. This will depend upon the size of the estate, the age and maturity of the child, and other personal factors.
Until your child receives a full share of the estate, the executor can advance payment for his or her "maintenance, care and advancement in life." These payments, made to a guardian or the other parent, will ensure that the guardian is not burdened financially.
If not adequately provided for, children can also apply under the Wills Variation Act to amend the will.
You can also name charitable organizations in your will. These include religious or social-aid groups, like the Salvation Army; and research organizations, like the BC Cancer Research Agency. Many worthy groups benefit from the legacy of wills donations. Consult a lawyer about the tax benefits for your estate.
Take care to get the exact legal name, or at least enough information to clearly identify the organization.
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There are two kinds of gifts: monetary and specific assets. For example, you may give your Honda Civic, a specific asset, to your nephew.
For monetary gifts, there are also two kinds: specific monetary gifts and a percentage of the net assets, or "residue." For example, you may give Jerry $10,000, a specific monetary amount. Or, you may give him a 5 per cent interest in the net assets of your estate. This is a percentage of the residue, or what's left after your debts have been paid.
Also, certain property is transferred directly, without forming part of your estate.
What property is not included under my will?
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Preparing a will
Although you can prepare a will yourself, a lawyer can advise you on tax and other issues, and properly record your instructions. He or she can also give you a checklist of information you need to gather. See "The Benefits of a Professional Will" for details.
Regardless, two independent witnesses, who do not benefit under the will, must see you sign it. Then they also have to sign.
Once signed and witnessed, the original will should be stored in a safe place: either in your safety deposit box, or with your lawyer (although many lawyers prefer to keep copies only).
After you write or amend your will, you or your lawyer should file a notice of its location with the Department of Vital Statistics. Do not send a copy of the will. This helps in locating a will after a person dies. Top of Page
Introduction to Estate Litigation - When there are disputes as to provisions / terms of a will
from Michael Mark, LLB - Wills / Estate Litigation Lawyer
A child or spouse of a person who dies leaving a will can challenge the provisions of will and seek a variation pursuant to the Wills Variation Act. The court will consider whether, in all of the circumstances, the deceased person (testator) made adequate provision for the claimant under the terms of the will. The considerations a wide and varied, but they include the nature of the relationship between the testator and the claimant, the size of the estate, and the relative needs of the other beneficiaries to the will.
Claims must be made within 6 months from issuance of probate of the will. Probate is the process in which the executor of the will probates or proves the will to the court. If a child or a spouse is not satisfied that the will makes adequate provision for him or her, legal advice ought to be obtained promptly so that legal action, if warranted, may be commenced in a timely way.
Michael Mark, LLB - Estate Litigation / Wills Lawyer
Vancouver Estate Litigation Lawyers
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see alsoDirectory of Wills & Estates Lawyers in Victoria, BC
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This page last updated: August 17, 2007
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