Introduction
Nidus uses the term Estate Planning to refer to making arrangements for AFTER death. A Will is an essential document for estate planning.
The term Personal Planning (Nidus’ expertise) is about making arrangements for while you are alive – BEFORE DEATH – in case of incapacity, for end-of-life, and other support needs. You may need help in one or more of the four life areas: health care, personal care, legal matters or financial affairs. Personal planning is about quality-of-life to the end-of-life.
The spotlight has traditionally been on estate planning and making a Will. With the aging of the population and other factors, the spotlight is shifting to personal planning. Both are on the Planning Continuum.
Many of us will name the same people in our estate planning and personal planning documents to ensure continuity and because these are the people who know us the best and who we can trust to respect our wishes.
Tips on Making a Will
Nidus has created a fact sheet on making your own will. This fact sheet is not a step-by-step guide. It gives tips based on people’s experiences and discusses the role of an Executor appointed in a Will.
Dying Without a Will
Some people are considered not mentally capable to make a Will. Nidus has created a fact sheet that explains who has legal authority to arrange burial or cremation and how the estate must be distributed if someone dies without a Will.
Information for First Nations Persons On-Reserve
For the most part, a First Nation Person Ordinarily Resident On-Reserve in BC is advised to follow BC legislation for making a Will and settling an estate. But there are two important differences to be aware of:
1) How land/real estate is owned on-reserve and who can inherit;
2) Indigenous Services Canada, BC Region Estates Unit must be contacted when a First Nation Person On-Reserve dies.
Joint Ownership: The Good, the Bad, and the Risky
Joint Ownership is common for spouses, but there are many risks to joint ownership with someone other than your spouse.
Estate Planning: An Overview
Cremation or Burial
Your wishes about cremation or burial are binding if they are stated in your Will. However, the Will is often not looked at until much later. Therefore, it is very important to communicate this information and a copy of your Will.
You cannot register this information or a copy of your Will in the Wills Registry. However, you can use the Personal Planning Registry to help communicate these wishes. You can store a copy of your Will (or the section of the Will that lists your wishes about cremation or burial) under the ‘Other Documents’ type of registration. Share the registration with your executor using the executor’s email address. You might also share it with family members to help things go smoothly at a time when people usually are in the mode of quick action.
Pre-paid Funeral or Memorial Arrangements
People often think they are helping others by paying for funeral or cremation in advance or by joining the Memorial Society of BC for discounts on burial or cremation when the time comes.
The problem is that people often make these arrangements long before they are needed. They might have told someone but at the time of death family and friends are often caught up in procedures required by the health system and forget. They often end up paying again at the time of death because they did not know you made arrangements.
If you want to make arrangements, we recommend you register these with the Personal Planning Registry and share them with others who may need to know. The Registry is a secure way to store documents but more importantly, those you permit can access the information at any time (24/7) and using their mobile phone or iPad/tablet.
Remember, that if you pay money to a funeral home ahead of time, it will not cover all the costs. Some things will still have to be paid at the time of your death.
Read important information about consumers rights related to these kinds of arrangements provided by Consumer Protection BC.
Designating and distributing gifts and settling your estate
The key legal document for settling your estate is a Will. You must be mentally capable of understanding in order to make a Will.
The legislation in BC governing Wills and Estates changed as of March 31, 2014. The new law is called the Wills, Estates and Succession Act (WESA). WESA outlines the requirements for making a Will and what happens if someone dies without a Will. Nidus will be producing a fact sheet to explain what happens if there is no Will since some adults in BC will not meet the capability requirements to make a Will.
There are other things that people who are mentally capable can do for estate planning such as designate beneficiaries for certain assets such as a Tax Free Savings Account or life insurance.
People also sometimes make someone else a joint owner on their real estate property or vehicle or bank account. This is common for spouses but requires caution for other relationships as there have been court cases when a parent adds a son or daughter as a joint owner. Also – joint ownership is only for when someone dies. Joint ownership with right of survivorship means that if an owner dies, the other owner(s) takes over the share of the deceased. But, this does not happen if an owner becomes incapable – in this case the other owner cannot renew car insurance or sell real estate property unless the person has a personal planning document in place.
A RESOURCE FOR LOW INCOME SENIORS
Access Pro Bono, in partnership with the provincial Ministry of Attorney General, operates a weekly Will and Representation Agreement preparation clinic at the Vancouver Justice Access Centre for low-income seniors (ages 55+) and people with terminal illnesses.
Who is eligible?
- You are a low-income senior over the age of 55, or terminally ill.
- Your household income per month for a family of 1–4 should not exceed $3,265. This is the same criteria used by Legal Aid.
- You must NOT have property and assets that exceeds $500,000 (and such property must not be outside of Canada).
Contact Access Pro Bono
In Vancouver:
- Call the Wills Clinic at 604-424-9600. Volunteers answer calls on Monday and Wednesday from 11 am until 1 pm. Or, you can leave a message and they will return your call.
- You will need to provide basic information including your address and source of monthly household.
- If you are found eligible, the Clinic will contact you 4–6 weeks later with an appointment time to meet with a lawyer. The Wills Clinic is located in downtown Vancouver.
- The Will drafting service is for free and the lawyers volunteer their time. As a result, there is a backlog of clients waiting.
Outside Vancouver: Contact 1-877-762-6664
Estate Planning FAQs
We did our Wills and assumed a copy was filed with BC. Were they?
Q. We did our Wills in 1998 and they were filed/registered with BC. We assumed that meant our actual wills were filed. Were they? Do you recommend lawyers who do Wills?
The Wills Registry allows you to file a ‘notice’ that contains information such as the date of the Will and where you are keeping the original. When you die, if probate is required, your executor must search the Wills Registry. However, the Wills Registry does NOT store a copy of your Will.
You can STORE A COPY of your Will with the Nidus Personal Planning Registry—use the ‘Other Documents’ type of registration. Storing a copy of your Will may be more important than ever as a result of recent changes to the legislation governing Wills.
Nidus does not publish a list of lawyers or notaries public who make Wills, however you can read about various legal professionals who support Nidus education activities and who are featured as guest experts—see our Donate page under Volunteer Contributions. Below are tips and contact information for locating a notary public or lawyer in your area.
It is a good idea to review your Will every few years. It may be timely since the law governing Wills and Estates changed as of March 31, 2014.
Most of my assets are in the US. Is it best to have a local executor?
Q. Most of my assets are in the US, where I lived for many years, and my son, my main heir, lives there. Is it okay for him to be my executor or is it best to have a local executor?
It would depend on the nature of the assets. A person should consider making a Will in every jurisdiction in which the person owns real property. The most important consideration is to pick the person to be executor that you trust and feel he or she is capable of doing it. If all else is equal, then there are some advantages (tax and convenience) to having a resident of the jurisdiction where probate will be granted to act as the executor.
– HUGH MCLELLAN, Lawyer and partner in McLellan Herbert
What items must be or should be included in a Will?
David Chalmers, of Nicola Wealth Management, recommends that you engage the services of a lawyer, trust officer or notary public to assist you in drawing a Will.
You can find more general Will information on the BC Government’s website.
A Will can be complicated…but in very simple terms a Will says:
This is my last Will and I revoke all prior Wills
I name xxxxxx as my Executor/Executrix…xxxxxx as my Trustee xxxxx as guardians for minor children. (One generally specifies how much discretion an Executor will have)
I direct that my Executor pay all my outstanding debts and taxes.
I direct that my Executor liquidate my assets (but may have the power to retain certain assets for future sale).
(The above two steps may be reversed depending upon circumstances)
I direct that my Executor pay the following bequests:
And I direct that my Executor divide the “residue” as follows:
…here’s where you say..”who gets what”…how money will be paid out…what happens under various contingencies etc.
A Will must be witnessed and signed…and usually every page is initialed by all parties…And a Will should be registered with the BC Government.
…and you should post a copy on the Nidus Personal Planning Registry – under Other Documents.
DAVID CHALMERS, Nicola Wealth Management
BA, FLMI, CLU, CFP, ChFC, CIM, RFP
Nidus would like to extend a special thank you to David Chalmers and Nicola Wealth Management for helping to promote our fall personal planning series and for educating their clients about Representation Agreements. Read David’s blog post.
RESOURCES
Wills Registry – you may file a Wills Notice that lists your name, the date you signed your Will, and where you plan to keep the original. The law does not require you to register information about your Will, but when you die, and if your estate is probated, a search of the Wills Registry is required by law.
The legislation in British Columbia governing wills and estates changed as of March 31, 2014. The Wills, Estates and Succession Act replaces the Wills Act and the Wills Variation Act. Following are links to information provided by the BC lawyers association (CBABC):
Making a Will and Estate Planning
I have a townhouse and was thinking of putting my 3 kids on the title. Is this a good idea? Why or why not?
Q. I have a townhouse and was thinking of putting my 3 kids on the title to avoid taxes upon my death. Is this a good idea? Why or why not?
Unless you are terminally ill and expect to die within a year, this is not generally a good idea if the only reason is to “save tax”.
CONS
The only tax saving is with respect to the probate fee of 1.4% of the value of the townhouse. However, if the children are not residing in the home, they cannot claim the principal residence exemption to capital gains tax on the home; therefore one half of 3/4 of the gain from the date of transfer to date of sale will be subject to the capital gains tax (the rate is based on marginal rates with a maximum of about 45%). If property values continue to rise, this tax will be far greater than the saving in probate fees. Other problems include the possibility of a child mortgaging their share, losing their share to their creditors or, most common, if the child’s marriage breaks down, their ex-spouse is entitled to half of what the child owns, with the consequent need to buy out the ex-spouse or sell the property.
PROS
On the other hand, it is a good tactic to minimize a potential Wills variation claim.*
*A Will variation claim can be made by your surviving spouse or one or more of your children. They would apply to the BC Supreme Court seeking an order that the terms of your Will be changed.
Information provided by HUGH MCLELLAN, Lawyer and partner in McLellan Herbert
Are there differences if a Will is done by a lawyer or a notary public?
Q. Are there differences if a Will is done by a lawyer or a notary public?
There is no difference in legal effect between a Will done by a BC Lawyer or a Notary Public.
Notaries are restricted by Section 18(b) of the Notaries Act that prohibits Notaries from drafting Wills with trust conditions where the trust is held past the age of majority (19) of the youngest beneficiary. If such a provision is desired, then the Will cannot be prepared by a BC Notary.
– RON USHER B.Sc., J.D., RI
General Counsel, The Society of Notaries Public of BC
Adjunct Professor MA Applied Legal Studies Program, Simon Fraser University
RESOURCES
Nidus recommends that you do your research—see the information below to assist you. You should also contact the legal professional and talk with their staff about your needs so they can explain their procedures and what to expect. They may have suggestions on what to bring to your appointment to save time and costs. Fees depend on many things and you cannot assume all lawyers charge the same amount or that a lawyer always charges more than a notary public.
Should I appoint a Trust Company as executor of my Will?
Q. I do not have children and no family in BC. I have a will and the executors are two friends who are my age (late 60s). Should I appoint a Trustee like a bank? I do not have real estate so it’s a simple will. My siblings who live in Quebec do not speak English.
The potential problem in your existing situation is that your Executors are the same age as you…thus when you pass away, they may have pre-deceased you or may be elderly and unable to act.
If you have friends who are younger and are willing to be Executors, that would be one solution.
Or you could appoint an institution – ask your bank what services it may suggest. Vancity provides Executor and Will Planning Services…and there is a company called Solus Trust who will provide these services. (Both Vancity and Solus Trust will charge for their services.) You can contact Solus Trust here.
– DAVID CHALMERS, Nicola Wealth Management
BA, FLMI, CLU, CFP, ChFC, CIM, RFP
Nidus would like to extend a special thank you to David Chalmers and Nicola Wealth Management for helping to promote our fall personal planning series and for educating their clients about Representation Agreements. Read David’s blog post.
Would you recommend a Will kit?
Nidus has received a number of inquiries from health care providers about how they can help their clients/patients make a Will.
Unfortunately, Nidus’ expertise is in personal planning (making legal arrangements in case you become incapable), not estate planning (making legal arrangement for after death).
However, Nidus would caution about using a Will kit for two main reasons:
- The law governing Wills and Estates changed as of March 31, 2014 and information and materials are still being revised. It will take time to integrate the changes.
- The knowledge about Wills and Estates is in the hands of legal professionals. There is no community-based resource for estate planning, like there is for personal planning.
It is true that the law in BC does not require you to go to a legal professional to make your Will. However, if you use a self-help kit and have a question, even a minor one, there is no resource for you to check with other than a lawyer or notary public. This suggests that contacting a knowledgeable legal professional to begin with can save time and provide reassurance.
In response to inquiries, Nidus did some preliminary research on resources that reflect the new Wills Estates and Succession Act (WESA). The provincial government website at Ministry of Justice does not provide plain language information—its main references are to the legislation and details about probate. While the public should have access to the legislation, without relevant examples and explanation, it is almost impossible to read through the legislation, apply it to your own situation and determine how to make a valid Will.
The Canadian Bar Association BC Branch (lawyer’s association) provides information to the public on legal topics through Dial-a-Law—written and audio scripts.
A government press release from April 1, 2014 notes that 45% of British Columbians do not have a Will. This is not a surprise given our recent research, which finds that most information about making a Will is out-of-date or not very accessible to the general public. How disappointing.
Having a Will can make things easier for your family and friends, even if you only leave a small bank balance and personal effects.
MORE FACT SHEETS AND INFORMATION
For related information related to Estate Planning and Wills, see the following resources:
- Representation Agreements
- BC Government site on Estate Planning and Wills
-
Dial A Law’s info on Making a Will and Estate Planning
-
Dial A Law’s info on the Duties of an Executor
LEGAL HELP
To find a lawyer, call the Lawyer Referral Service at 604.687.3221 or 1.800.663.1919. To locate a notary public near you, contact the Society of Notaries Public of B.C. at 604.681.4516 or 1.800.663.0343 or search at www.notaries.bc.ca
Don’t forget to register your plans.
Nidus operates the online Personal Planning Registry.
The Registry provides secure storage of important information and documents in ONE central place. You can grant access to others who may need to know in times of a health crisis or a disaster (such as wildfire, flood or earthquake). You also have 24/7 access to your own information and documents to help yourself during and after a crisis or disaster.
Learn more about how to register your personal planning documents.
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