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Estate Planning: Will Preparation is Important and it’s Easier than You Think


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  • Estate Planning: Will Preparation is Important and it’s Easier than You Think

Many Canadians put off estate planning or avoid it altogether. A recent poll of Canadian adults found that 50% don’t have a Last Will and Testament in place. When asked why they don’t have a Will, the top reasons were that they are too young to need one, they don’t have enough assets to worry about, and that making a Will is too expensive. Others procrastinated because they didn’t want to think about their own mortality.

The reality is that a legal Will is a key component of good estate planning. Wills are not just for the elderly or for wealthy people, and the cost of creating a Will is probably less than you are guessing. In fact, having a Will is very likely to save you and your loved ones time and money in the long run.

Ensuring that you have a Will in place is one of the most important things you can do for your family members. The team at Onyx Law Group understands that creating a Will can seem like a daunting task. We prepared this blog article to help you get an understanding of the things to consider and the process for creating a legal Will. If you have questions or want to get your Will in place, give us a call. We take the time to understand your wishes and your family needs and aim to simplify the process as much as possible.

Estate Planning Basics: Understanding the Need for a Will  

Estate Planning Basics: Understanding the Need for a Will  

Your estate is everything you own at the time of your death. Your Last Will and Testament is a legal document that solidifies your wishes regarding the distribution of your estate on your death. It’s your opportunity to have your final say. You get to give your instructions for who inherits and when they inherit, and you get to choose who you want to handle your estate on your behalf.

What Happens if you Die Without a Will

If you die without a Will—known as dying intestate—your estate must be distributed in accordance with the inheritance rules in British Columbia’s Wills, Estates and Succession Act, SBC 2009, c. 13 (“WESA”). How your estate assets are distributed depends on the value of your estate and the combination of relatives you leave behind. The people you wanted to inherit may not, or they may get less than you would’ve wanted. In addition, someone will have to bring a court application to be appointed to handle your estate. That person may not be the one you would’ve chosen.

Key Components of a Legal Will

There are many benefits of having Will—some of which are discussed below—and several important decisions that you’ll need to make to ensure your Will does what you want it to do. Our estate planning lawyers can take you through an estate planning checklist to ensure that nothing is missed and that your loved ones are provided for in the manner you intended.

In addition, your lawyer will ensure that your Will meets the legal requirements or “formalities” so that it is binding and enforceable. For your Will to be valid, it must meet the formal requirements set out in section 37 of WESA. It must be:

  1. In writing;
  2. Signed by you; and
  3. Signed in the presence of two witnesses who are over the age of majority who also sign the Will.

If your Will doesn’t meet those formal legal requirements, it is not enforceable.

Mistakes in your Will can result in your Will be contested after your death, which will cost your estate time and money, and cause delay in your family members receiving their inheritance. The best way to ensure that you leave a valid Will is to have it prepared by a legal professional. Estate lawyers have specialized knowledge of estate law, so they can create a legally valid Will that achieves your estate planning goals. Skilled estate lawyers can also advise you on ways to minimize estate taxes and avoid probate court and probate fees.

Benefits of Having a Will

Benefits of Having a Will

A Will is one of the most important legal documents you’ll ever prepare. It doesn’t matter if you have a simple estate or a complex estate with many assets—a Will is essential if you want a say in what happens to your assets, as well as other matters of importance, after you die.

A well-drafted Will achieves several important objectives. In addition to expressing your funeral and burial wishes, you can customize your Will to:

  • Choose who will handle your estate.
    • You get to select an executor you trust to administer your estate, and you can name an alternate executor who’ll step in if your first named executor isn’t able to act.
    • Some people have concerns about burdening someone with the responsibility or doubt the chosen person’s ability to handle the task effectively. An estate planning lawyer can guide you in selecting the a trustworthy, organized executor. There are lots of options. Depending on your wants, assets, and family situation, you may choose to appoint co-executors, or you may appoint a professional trust company to act as your executor.
  • Control who inherits what from your estate.
    • You provide instructions for which specific assets or how much money each beneficiary shall receive. You can choose to benefit friends, family, and/or make charitable donations to causes you care about.
    • You can specify whether those gifts are immediate or delayed and held in trust. For example, if you have minor children, you can set up a trust in your Will to ensure that your estate provides for the financial needs of your children while they are minors. The trust can continue to a set age of your choosing (e.g., 20, 25), so that your children receive their inheritance when they are more likely to be better at making financial decisions and better able to handle their financial affairs.
  • Set up trusts or life estates.
    • You can create trusts in your Will to protect assets or for wealth management, thereby providing long-term financial stability for your loved ones. We just discussed setting up a trust for minor children. You can also use a trust to benefit a disabled beneficiary, an adult beneficiary who is not sophisticated in financial affairs, or a beneficiary who has shown themselves to be financially irresponsible in the past (sometimes referred to as “spendthrift trusts”).
    • Life estates can also be established in your Will. For example, a life estate (also called a “life interest”) in a piece of property allows the beneficiary to reside in the property for the duration of their life. On their death, the life estate beneficiary loses their interest in the property, and the property goes to the residual beneficiary or beneficiaries you named in your Will. Life estates are frequently used in blended families to benefit a second spouse during their lifetime, and then provide for children from the first marriage after the second spouse’s death.
  • Choose a guardian for your minor children.
    • Having a Will in place ensures that your children will be looked after by someone you love and trust. In your Will, you can name a guardian who will be responsible for the care and upbringing of your minor children. If you die without a valid Will, the Court will choose a guardian for your children.
  • Deal with your digital assets.
    • You can address digital assets in your Will. These types of assets include non-fungible tokens (“NFTs”), passwords for social media accounts, digital photos, digital art, data, and cryptocurrency.
  • Deal with your business interests.
    • If you are a business owner, you can use your Will to deal with business interests and private company shares.
    • You may want to create multiple Wills, one that deals with assets and property that must go through the probate process, and one that deals with private company shares or certain other types of property. The assets passing via the second Will do not need to go through the probate process, which saves probate fees.

Having a Will offers several other benefits. For example, a Will can minimize probate fees and legal fees that would otherwise be incurred by your estate after your death. The steps you take now can maximize the inheritance your beneficiaries ultimately receive. In addition to avoiding the lengthy probate process, a well-drafted Will also speeds up the estate administration process and goes a long way to avoiding the potential for estate litigation that would delay the settling of your estate (to say nothing of saving your loved ones from the deep distress and damage to relationships that estate litigation can cause among surviving family members).

Common Estate Planning Mistakes

Common Estate Planning Mistakes

Our team of estate planning and estate litigation lawyers have seen it all when it comes to Will mistakes. Here are some of the more common estate planning mistakes:

  1. Not having a Will at all.
  2. Forgetting to name alternate beneficiaries who inherit if first-named beneficiaries die before the will-maker.
  3. Forgetting to deal with all estate assets. Estate assets not addressed in a Will must be distributed in accordance with the fixed rules of intestacy, discussed above.
  4. Not getting legal advice when preparing a Will (e.g., using a one-size-fits-all Will template or DIY Will kit).
  5. Not updating a Will after a major life event such as a marriage, divorce, birth, or death.
  6. Failing to meet the formal requirements (e.g., not signed by the will-maker).
  7. Having beneficiaries or their spouses witness the Will, which voids gifts to them.
  8. Hiding a Will or locking it in a safe or safety deposit box that your executor isn’t aware of or can’t access.

With timely legal advice, some mistakes can be fixed. Other mistakes can lead to costly estate litigation, and/or the Will being declared invalid, which means that the estate must be distributed as if the person died without a Will.

Another Mistake When it Comes to Estate Planning

Another Mistake When it Comes to Estate Planning

Will preparation is undoubtedly important. But a Will is usually only one part of a comprehensive estate plan. Good estate planning also considers other issues, such as incapacity planning, wealth management, and tax implications.

It’s a mistake to ignore those other issues. Instead, think of your Will as the cornerstone of your comprehensive estate plan which, depending on your needs and the types of assets you own, may also include:

  • Important documents such as an enduring Power of Attorney so a trusted person can handle your financial affairs if you lack mental capacity to take care of your financial needs, and a Representation Agreement for health care decisions to be made on your behalf by a person of your choosing if you lose mental capacity to make medical decisions yourself.
  • Succession planning if you are a business owner.
  • Trusts established during your lifetime, such as an alter ego trust or joint partner trust.
  • Beneficiary designations in life insurance policies, RRSPs, TFSAs, and pension plans. Your designated beneficiaries receive these assets outside of your estate. You must factor in these in to ensure your overall estate plan doesn’t disproportionately benefit certain people.
  • Joint ownership of assets such as your home or bank accounts. Jointly owned property does not form part of your estate. Instead, the “right of survivorship” applies and your interest in the property automatically passes to the surviving joint owner. It’s important to consider whether it makes sense to transfer assets into joint names, which then bypasses the need for probate court with respect to that asset.
  • Gifts during your lifetime. There can be advantages if you chose to transfer assets during your lifetime. Certain types of gifts are tax-free, but others attract tax consequences. It’s important to get advice from a financial planner or accountant to know whether the Canada Revenue Agency would treat the gift as a transaction that attracts taxes. It is also crucial that you properly document any gifts so that there is proof of your intention to make a gift during your lifetime. Otherwise, the gift is more vulnerable to being challenged.

Help With Wills and Estate Planning

If you are unsure of how to make a Will in BC, reach out to us for straightforward, trusted advice. A Will is a legal document and it’s so important that you consult with a lawyer when you create legal documents. The estate planning team at Onyx Law Group can ensure that your estate is in order, which will put your and your family’s minds collectively at ease.

We have the knowledge and experience required to streamline the process and craft a Will that reflects your wishes.
Contact us today to discuss the preparation of your Will.

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