– By Marlise Foster, Legal Assistant

Surveys suggests that only about 55% of residents in British Columbia (BC) have a legally valid, up to date, and signed will. In other words, about 45% of people in BC will not have a say in how their estate is distributed after their death; possibly depriving a rightful heir – be that people, charities or organizations- out of an inheritance.

Dying without a will may result in your estate being distributed to people you would not have chosen or selected, or potentially the government.  There is also the possibility then that the cost of administering the estate will also be higher.

What is a will?

A will is a legal document containing instructions regarding what a person wants to be done with their property after they die. Having a will helps ensure that important questions are answered. For example, parents may appoint guardians for minor children should both parents die in an accident, or grandparents give instructions on how real property is to be divided amongst family members.

Not having a will is setting family, or people who expect to inherit from you, up for emotional, legal, and financial turmoil.

Who can prepare a Will?

You can prepare your own will but there are pitfalls and risks associated with that.

It is recommended that a Lawyer or Notary at least give advice on preparing a will if it will be complicated.  Some things that can complicate a Will are charitable gifts, real estate outside of BC and /or Canada, the creation of a Trust fund for minor children or a bursary for someone at a tertiary school specializing in a specific field, etc. In general, assistance from a professional is always a good idea.

What are the requirements for a Will to be legally binding?

  • The Will must be in writing – either typed or hand written;
  • The Will must be signed by the person whose Will it is;
  • The Will must be signed by the will-maker in front of two witnesses.  Someone who is unable to sign a Will due to illness or disability, may ask someone else to sign it on his / her behalf in front of the person, as well as in front of two witnesses;
  • The same two witnesses must then sign the Will in front of the will-maker;
  • Each page of the Will must be initialed by the will-maker and the two witnesses in front of each other; and
  • The Will must be dated on the day the will is signed.
NOTE: Due to the Covid-19 pandemic and under orders from the Ministry of Public Safety and Solicitor General,  the government of BC has temporarily suspended the requirement for in-person signing of Wills, powers of attorney and representation agreements. These will expire once the state of emergency in BC is lifted.
What is Probate?

Probate is a legal procedure that confirms whether or not a Will is legally valid as the last Will, disclosing all of the assets in the estate. Estates worth less than $25,000, may not need to go through probate.

Who / what is an Executor?

The Executor is the person the Will-maker appoints to ensure that his / her estate is taken care of and distributed after death.

An Executor is, in most cases, a close family member or friend of the Will-maker but it can also be a lawyer or the Public Guardian and Trustee.

Duties of the Executor includes:

  • Find the Will – search the Will-maker’s home, safety deposit box at a bank, contact the lawyer or notary who prepared the Will;
  • Confirm that the will is legally valid;
  • Protect the assets – gather and arrange for safe keeping of cash, jewelry, etc., secure property such as real estate and vehicles;
  • If required, arrange the funeral;
  • Communicate with the beneficiaries;
  • Prepare an inventory of all the assets and liabilities of the estate;
  • Apply for Probate – if the estate is worth more than $25,000.00;
  • Pay debts and submit the final Tax Return;
  • Prepare a statement of what you have done and provide it to the beneficiaries; and
  • Distribute what remains of the estate among the beneficiaries.