Nowadays practically everyone knows what a Last Will is. At the same time, almost half of all adult British Columbians do not have a legal Will. There are numerous misunderstandings and “folk wisdoms” around Wills. In my blog I will try to dispel the most common of those misconceptions.
- Even if I don’t have a Will, after I pass away my spouse will inherit all of my property by law.
If only it were all so simple. Without a valid Will, a person is said to have died intestate. This means that provincial legislation (in British Columbia it is the Wills, Estates and Succession Act or WESA) will determine how the estate is to be divided. Dying intestate means that the estate will be distributed through blood lines. The willmaker will have no control over who gets what or how much. Often people presume that in case of their demise the spouse will automatically inherit their entire estate by law. Well, not quite. According to WESA, if the deceased left a surviving spouse and children, the estate will be divided between the spouse and all the children, including children from previous marriages. The former Wills Act stated that the surviving spouse had the right to inherit the matrimonial home. WESA now states that the spouse only has a preferential right to purchase the matrimonial home from the estate.
The following situations are the ones that could be especially problematic when a person has no Will:
- I do not have a Will and I have children of school age. But even if both me and my husband die in an accident, my mother will become the Guardian of my children, right? After all, she is their closest relative.
One of the single most important things a person can do through a Will is appointing a Guardian for his/her minor children. In British Columbia, if a child under 19 has no living parents and the parents had no Will, a Guardian for that child can only be appointed by court regardless of whether the child has close relatives or not. The judicial process takes time. In the meantime, Public Guardian and Trustee will be responsible for the child’s care and wellbeing. Planning early can prevent family members and friends from fighting over guardianship rights in court and will mean less potential hardship to your child.
- Once a Will is signed, it does not need to be updated, ever.
Things keep changing throughout the years, therefore updating or reviewing your Will is important. There are situations however where updating a Will becomes essential. These situations include:
- Even without a Will, my spouse will be able to manage my affairs after I am gone.
Without a Will, the deceased’s estate will be managed by a court-appointed administrator. A surviving spouse can count on being appointed as administrator of the estate problem-free only if there are no competing claims from other relatives. If there are other claims, things can become messy. With a properly executed Will you can be comfortable in the knowledge that your executor will manage your estate with proper care and according to your wishes. If there is no Will, then there is a chance that the estate will be managed by an administrator who may not fully understand or appreciate your wishes.
- I heard my neighbours talking about writing a Will using a do-it-yourself kit from STAPLES. It sounds like a good idea to write your own Will without the extra expense of going to a Notary.
Using a do-it-yourself kit to write a Will is a bit like self-diagnosing an illness after reading an online medical blog: sure, you can do it, but beware of the risks involved. A Notary may advise you of situations and scenarios you never knew existed or explain to you the legal ramifications of a particular choice that you are leaning towards. The problem with the STAPLES kit starts with its name: it is called Canadian Legal Will Kit. What they don’t tell you at the store is that there is no such legal term as Canadian Will: all Wills in Canada are regulated by the laws of the provinces, and what is considered a legal Will, for example, in Saskatchewan, will not necessarily be recognized as such in British Columbia. You would certainly do better talking to a professional.