December 13, 2013
The following is taken from the Canadian Bar Association website, with permission and courtesy of Spagnulo Legal Services. This page discusses why you should have a will, and how your estate is handled if you do not.
Why should you make a will?
Every adult should have a will, but especially those who own assets or have a spouse and/or young children. The few hours that you spend with a lawyer planning your estate could save your spouse, children and other beneficiaries much time, effort and money.
By not having a will, you lose control over who and how your estate is distributed and more importantly, you also give up the right to appoint a guardian of your choice for any young children you have.
If you are reading this without a current will, you are not alone. Many people do not have a will, and one reason is usually the cost. Believe us, the costs to administer your estate without a will may be dramatically more than if you had a will. In the long run, a will may be basically free, given the savings your estate may realize.
How will your estate be divided if you die with or without a will?
If you die with a will, you decide how your estate will be divided and at what ages your children will receive their share of the estate.
If you die without a will, BC’s Estate Administration Act dictates how your estate will be divided. You lose control of the estate, and the following rules will apply:
If you own a home as "joint tenants" then ownership of the home will transfer to your spouse. But if you own the home and your spouse is not on title or if you own the home as "tenants in common" your spouse will have the right to use it for life. This is called a "life interest" and can tie up the estate for a long time if money from the sale of the home is to go to someone other than the spouse.
Your spouse receives the first $65,000 of your estate. If you have children then your spouse and children share what’s left – equally if you have one child, and if you have more than one child, then one-third to the spouse and the remainder equally to your children. If you have no children, then your spouse gets everything. Children born outside of marriage are treated the same way as other children in the family. Step-children are currently excluded.
There are rules if no spouse, or if your spouse predeceases you, or if no children, etc. The important item is that you lose control over your estate, who receives what, and when.
When would the children get their share?
If you have a will, you appoint the executor and trustee for the child, and you decide when your children receive their share. Prior to them attaining the age you set out, the share may be used for the child’s benefit, including support and higher education, without government involvement.
Without a will, the Public Guardian and Trustee’ Office becomes the trustee and holds the child’s share in trust until they’re 19 years old. The child’s guardian would have to apply to the Public Guardian and Trustee for any money needed for things like living expenses or education. This can be a hardship if the child is quite young and the parent or guardian needs the money for day-to-day expenses. When the child turns 19, he or she can demand all of their money no matter how much it is, regardless of their maturity or financial responsibility.
Who takes control of your estate if you die without a will?
In a will, you can name an executor to manage your estate when you die. You can also name a guardian to look after any infant children. If you die without a will, then an administrator must be appointed by the court to manage your estate. The court will also appoint a guardian if you have children under 19 and the other parent isn’t alive. Your wishes may not be carried out, as the courts will make the decisions.
Estate planning and making a will is very important
Making a will involves much more than just signing a document. It involves reviewing your potential estate and planning to minimize the costs of probate and administering your estate. Between spouses, and to some extent children, there are many legal ways to avoid paying substantial probate costs, administration costs, Public Guardian and Trustee expenses, and income taxes.