FAQs about Wills

Frequently Asked Questions About Wills

What Happens If I Die Without a Will?

If you don’t make a Will or use some other legal method to transfer your property (for example joint tenancies) when you die, your assets will be distributed in accordance with the British Columbia Estate Administration Act.

Generally, your assets will pass to your spouse and children or, if you have neither, to your other closest relatives and next of kin. Your property will go to the Provincial Government if no relatives can be found.

In addition, in the absence of a will, a court will determine who will care for your young children and their property if the other parent is unavailable or unfit.

Can I Write My Own Will and Then Just Sign It?

Handwritten, unwitnessed wills, called “holographic” wills, are not legally recognized in the province of British Columbia although other provinces in Canada do recognize them.

To be a valid will in British Columbia, the will must be:

1. signed by you; and,
2. signed in the presence of two witnesses present at the same time, who then, in turn, must also sign your Will.

The only exception to this, in accordance with the Wills Act of British Columbia, applies to a member of the Canadian Forces.

Who Can Contest My Will?

Under British Columbia law, called the Wills Variation Act, only your spouse and children have the right to contest your Will on the basis that you, as a parent or spouse, have failed to “make adequate provision for their proper maintenance and support.”

The Wills Variation Act applies to any assets that you own and that pass under a valid Will forming a part of your estate. It does not apply to property that passes by right of survivorship such as a joint tenancy or to designated beneficiaries of insurance proceeds, pensions, RRSPs, RRIFs and so forth.

In a Wills Variation action, the Court has a wide discretion to vary a Will in any manner that it thinks just.

If you are concerned that a Wills Variation Action may be commenced against your estate because of the distributions you are making in your Will, you should consult with a lawyer to discuss your estate planning needs. Set your mind at ease, call us.

Who Should I Choose as My Executor?

An executor is responsible for the administration of your estate. The duties of an executor encompass everything from identifying and protecting the your assets, filing all necessary income tax returns (for you and your estate), identifying and settling all your debts and liabilities, to distributing the estate to the beneficiaries in accordance with your Will. In some cases, your executor may also be the trustee of any trust that you have created in your Will.

You should choose someone who:

1. you trust
2. is responsible and is capable of handling the onerous duties as an executor
3. is healthy
4. lives here in the Metro Vancouver area or relatively close by

When Should I Choose a Professional Executor?

You may wish to have a professional trustee/executor if you have no family members or close friends who can act as your executor. Or, you may have a complicated estate – due to large number of assets, assets in various jurisdictions, or you may be in a situation of contentious family dynamics.

You may also want to appoint a family member or friend to be co-executor with a trust company.

Can My Executor Decline My Appointment? What Happens if My Executor Does?

You should always ask the person, who you are naming as your executor, if they are willing to accept the appointment as your executor, prior to naming that person in your Will. An executor appointment should never be a “surprise appointment” as the duties of an executor are onerous and can be difficult. You should update your Will immediately if your primary executor becomes ill, incapacitated, or moves away.

You should also always name an alternate executor in your will.

If your named executor refuses to accept his or her appointment and you have no alternate, then a family member or friend will have to make an application to be named your executor (administrator). The Public Guardian and Trustee’s Office will step in if no one comes forward.

Do I need to file a copy of my will in Victoria?

No. Your will does not need to be recorded or filed with any government agency, although in British Columbia, you can file a Wills Notice with the British Columbia Vital Statistics Agency. The Wills Notice identifies that a will has been registered and describes the person who has made the will (name, date of birth and place of birth), the location of where the will is being stored and the date that the Will was executed. A copy of the will is not filed with the notice.

Contact Stephen Miller for more information.

Located in: Wills & Estates