What is a Will?
A Will is a written statement setting out a person’s intentions of how to dispose of property on death. A Will allows you to name a Personal Representative. The person you name as your Personal Representative is given the powers to collect assets, discharge any outstanding debts, complete all legal and other arrangements and hold/distribute your property according to the directions you provide in your Will. There are precise formal requirements regarding the making of a Will without which the Will is not valid.
Who can make a Will?
In the Province of British Columbia, anyone over the age of 18 and of sound mind can make a Will. (There are exceptions to every Rule! If you are under 18, you can make a Will if you are married, are a member of the armed forces or a seaman or mariner.)
What happens if you die without a Will?
British Columbia law does not require that you make a Will, but it is highly advisable to have one. If you do not have a Will, the distribution of your Estate will be governed by the Intestate Succession Act. This is a provincial law that dictates how your property is disposed of. However, this structured disposal can potentially cause significant problems for some families. For example, if your spouse and children survive you, the Estate does NOT all go to your spouse. As well the Courts direct such things as who will be your personal representative, what will happen if you and your spouse die in a common disaster and at what age your children will inherit property.
What should be in your Will?
Normally your Will deals with the following issues; appointment of a Personal Representative and an Alternate Personal Representative, appointment of a Guardian and an Alternate Guardian for your children, disposition of your property, directing payments to minor children, tax, RRSP, and insurance issues; authority to deal with your property and other personally selected items.
Legal Fees
Wills are relatively inexpensive, especially in light of the potential savings in time, money, and stress. For example, the current fee schedule for simple Wills is $350 inclusive of taxes and disbursements. Of course, the more complex the family situation, the more it will be.
DEPENDENT ADULTS
Helping people cope with Dependent Adults is becoming increasingly important due to our aging population. Two documents that can help family members are the Enduring Power of Attorney and Personal Directive (set out below). If family members are unable to care for themselves, and an Enduring Power of Attorney and Personal Directive are not in place, there are legal means available to obtain a Court Order for Guardianship and/or Trusteeship.
ENDURING POWERS OF ATTORNEY
Enduring Powers of Attorney are legal documents which may either take effect immediately or at the time when a person loses mental capacity. This document allows a person to name someone as their “attorney” to look after their financial affairs either for a specific time period or indefinitely. An Enduring Power of Attorney (as opposed to a regular Power of Attorney) continues or endures despite the makers’ mental incompetence. Having an Enduring Power of Attorney executed while a person is still mentally competent can reduce the delay and expense of obtaining a Court Order for Trusteeship.
PERSONAL DIRECTIVES
Personal Directives are legal documents which take effect at the time when a person loses mental capacity to make their personal decisions. This document allows a person to name someone as their “agent” to look after their medical and day to day living decisions when they are no longer able to decide for themselves. This document can be as general or specific as the maker wishes. The maker can name an agent to make decisions and offer no further guidance or the maker can provide their agent with explicit instructions regarding specific scenarios. Having a Personal Directive executed while a person is still mentally competent can reduce the delay and expense involved in obtaining a Court Order for Guardianship.
Contact Alphil Guilaran today to learn more about how to get started with putting a proper Will or Power of Attorney in place.
Alphil Guilaran
Executive Director
604.687.7773
