Make a Will Week: 4 Reasons You Want to Make a Will

April 7 to 13, 2019 is “Make a Will Week” in British Columbia, which encourages the public to make a will or bring an existing will up-to-date.

But really, why bother?

1. Your estate probably does not fall the way you assume it does if you die without a will: For example, if you have a spouse and a child under the age of 19 and you die without a will, you may assume your estate passes in full to your spouse. This is not necessarily the case. In fact:

• if your child is the child of you and your spouse, your spouse is entitled to the first $300,000 of the value of your estate (after debts paid) and the remainder is split 50/50 between your spouse and child;
• if your child is your child and not the child of your spouse, your spouse is entitled to the first $150,000 of the value of your estate and the remainder is split 50/50 between your spouse and child;

but since your child is under the age of majority, her share must be paid to the Public Guardian and Trustee of BC to be held in trust for that child until she turns 19 at which time it will be paid out in full to your 19 year old child (as long as she has capacity). The Public Guardian and Trustee will charge management fees on funds held in trust.

If all of the value of your estate is equity in your family home, your spouse may need to sell the home in order to pay the child’s share to the Public Guardian and Trustee.

Another example, you were in a relationship for two years at the time of your death that was “marriage-like” and that person claims to be your spouse. If you have no children, your spouse inherits 100% of your estate. What if your estate includes family business interests or assets that were gifted from your parents and you did not intend to give those to your live-in boyfriend?

2. You probably want to appoint a guardian for that minor child: If you do not appoint a guardian for your minor child in your will, by default, on the death of you and the other parent of your minor child, the director under the Child, Family and Community Service Act becomes the personal guardian of your child and the Public Guardian and Trustee of BC becomes the property guardian of your minor child.

If another person, for example, your sibling or your parents, wants to become legal guardian of your minor child, that person will have to apply to the Court to be appointed.

3. You probably want a say in who is in control of administering your estate: In your will, you appoint the person (or corporate trustee) that you want to secure your assets, pay your debts, and distribute your estate – the executor.

Without a will, there is a default hierarchy under statute of who can apply to the Court to administer your estate. That person has no authority to deal with your assets in any way until they obtain a grant of administration from the Court. Depending on the complexity of your assets and the need to move quickly to secure them (e.g., business interests, digital assets, royalties), there may be a person better suited to administer your estate than who the hierarchy dictates – e.g., your spouse who has never dealt with the finances or young adult child or elderly parent.

4. Actually, you probably want more than just a will: When planning for dealing with your assets on your death, do not forget planning to deal with your assets during your life if you lose capacity. Incapacity planning is important!

A capable adult can make a power of attorney (financial decisions) and a representation agreement (medical decisions). If you suffer a brain injury or a neurodegenerative illness and lose capacity and do not have your incapacity planning in place, someone will need to apply to the Court in order to obtain the authority to make decisions on your behalf (this is called committeeship). The committeeship process is invasive (medical and personal evidence is required) and can be expensive.

If 2019 is the year you are going to make a will or if you have questions about the estate of someone who has died without a will, we can assist. For further inquiries on this topic, please contact one of our lawyers in our Wills, Estates + Trusts Practice Group.