Top 3 Reasons to Make a Will

Estates & Trusts, Wills | October 5, 2022

It is Make a Will Week in B.C., which serves as a timely reminder to review your Will or, if you are amongst the 60% of British Columbians who does not have a Will, finally schedule your appointment to make one! These are the top 3 reasons it is worth your time and money to make a Will and do it right.

1. Peace of Mind: A Named Executor versus a Court-appointed Administrator

The executor named in your Will is also the trustee of your estate. It is your executor’s job to make funeral arrangements, pay debts, and protect and preserve the assets of the estate, and then eventually distribute them in accordance with the terms of your Will. If you name an executor in your Will, that executor can start protecting and preserving assets immediately upon your death by keeping properties insured, notifying banks and credit cards of your death, etc.

If you die without a Will, eventually the Court will appoint an administrator, who will have the same responsibilities that your executor would otherwise; however, it typically takes at least six months for the Court to order a Grant of Administration and your estate will be in limbo until that Court Order is made.

Additionally, creating a Will allows you to appoint the person you want to be your executor. If you die without a Will, the Court will appoint an administrator and, if there are several applicants, the Court will have to choose, based on the following order of priority: first, the spouse of the deceased (or a person nominated by the spouse); second, a child of the deceased who has the consent of the majority of the children; third, a person nominated by a child of the deceased who has the consent of the majority of the children; fourth, a child who does not have the consent of the majority of the children, etc. If there is no person that the Court considers appropriate, the Public Guardian and Trustee will be appointed (Wills, Estates and Succession Act (“WESA”), s.130). A contested application to determine the most appropriate administrator could cost your estate a significant amount of money, leaving less for your beneficiaries.

2. Taking Care of your Children: Guardianship

Your Will appoints a guardian or guardians for your children. If you die without a will and have children under the age of 19 (and the other parent is no longer a guardian of the children, either because of death of the other parent, or in some family law contexts, because of Court Order), the Court will appoint a guardian. If no guardian applies or is considered appropriate to be appointed, the Public Guardian and Trustee of British Columbia (the “PGT”) and the Ministry of Children and Family development (the “Ministry”) will become the children’s guardians. A valid will naming guardians (and even alternate guardians if your first choice is unwilling or unable) is the safest way to avoid having the PGT and the Ministry become involved in your children’s care either on a temporary or permanent basis.

3. Spending Wisely: Trusts for Children

A well-drafted Will sets out exactly when and how your beneficiaries will receive their inheritance. For example, if you have minor children when you die, your Will can specify at what age you want your children to receive their inheritance. The age of majority in B.C. is 19; however, many parents feel that the age of majority is not the age of maturity and build trusts into their Wills to ensure that their executor still has control of the funds until the children are older and have more life-experience. It is common for a Will to have a trust for children that instructs the executor to make payments on the children’s behalf, for their “maintenance, education, use or benefit” (such as for tuition, rent payments, purchase of a car), but not to give the money to the children directly even up to age 25.

If you die without a Will, and there is no trust in place for your children, the PGT will become the trustee of their inheritance until they reach the age of 19, at which point the children receive the money outright.

A Final Thought

In addition to the reasons outlined above, the greatest benefit of sitting down with a lawyer to make a Will may be the conversations that happen in your planning meeting. What assets do you own that will pass outside of your estate? Who are the subscribers on your RESPS? Have you pre-arranged your funeral? End of life decisions should not be left to the end of life.

© Linley Welwood LLP. The contents of this article do not constitute legal advice. Readers should seek legal advice in relation to their own specific circumstances.

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