Estate Planning: Notary, or Lawyer?

When first setting out to write a will, many people have no idea where to start. It’s very common for a first-time will writer to underestimate the complexity of their estate, especially if they hope to maximize the value of their estate for their future beneficiaries. Individuals and families use estate planning to efficiently and lawfully pass their assets on to their loved ones.  But who should you ask for help, a notary, or a lawyer?

In British Columbia, both notaries and lawyers are able to assist individuals with drafting their will. However, notaries have some limitations that will writers should consider before deciding which services to use. Hiring a lawyer rather than a notary is essential when seeking advice for a robust and effective estate plan, no matter how simple your asset holdings and family structure may seem. 

Notaries and Lawyers: What are the Key Differences?

Notaries have the authorization to witness and authenticate legal documents such as wills and powers of attorney. While they can guide the execution of these documents, they do not have the authorization to provide legal advice in other areas of law. People often use notaries to witness the signing of wills, powers of attorney, and other legal documents. This is because some individuals prefer a professional witness over asking a family member or friend for assistance.

On the other hand, a lawyer is qualified to provide advice on a wide range of areas of law. This includes estate law, but also encompasses many other areas including criminal law, family law, and business law. This is important to will writers because a lawyer will be able to advise on overlapping areas of law which are relevant to the unique circumstances of the client and their estate. In estate law, people often call upon a notary to witness the signing of a will or power of attorney. However, they are more likely to involve a lawyer in the process of creating and drafting these documents.

Limitations of Hiring a Notary to Create Your Estate Plan

In  Society of Notaries Public of British Columbia v. Law Society of British Columbia 2017 BCCA 448, the Court of Appeal for British Columbia clearly set out the limited scope of notaries’ work in estate planning. The decision affirmed that notaries cannot prepare a will where the will writer’s assets do not immediately transfer to their beneficiaries upon death. Though this may sound ideal for will writers hoping to transfer their assets to beneficiaries as quickly as possible, this places severe limitations on the estate planning tools available and can ultimately mean your beneficiaries receive an inheritance of lower value. A notary cannot create a will which:

• Contains a testamentary trust;
• Contains a trust for minor children;
• Contains a spousal trust;
• Contains a fully discretionary trust;
• Or contains provision for a life estate in a property

These limitations severely restrict the ability of will writers to create an estate plan that suits their specific needs. They will not be able to make full use of trust instruments, which can be some of the most powerful tools for estate planners. For more information on the value of implementing trust instruments in your estate plan, read our article here.

Hiring a Lawyer to Create Your Estate Plan

In British Columbia, the courts have the power to change, or vary, someone’s will even after their passing if it is found to not provide adequate provision for spouses and children. When creating your estate plan, it’w essential to minimize the risk of litigation arising from your will after your death. If you consult with lawyers who have expertise in estate litigation, they can guide you on structuring your estate in the best way to ensure its distribution aligns with your specific wishes after your death.

A lawyer who specializes in estate planning will have a deep understanding of the various options available to clients, such as wills, trusts, and power of attorney documents, and will be able to advise clients on the best course of action for their specific situation. This is particularly important in situations where there are complex family dynamics or high-value assets involved. Further, estate planning lawyers will be able to advise on providing care and financial planning for will writers even before their death through the appointment of powers of attorney and personal representatives. Lawyers will also be able to provide service after the death of the will writer through supporting the executor of the will in the probate process and distributing estate assets to beneficiaries.

Estate planning, a critical aspect of one’s financial health, enables individuals and families to pass on their assets to their loved ones efficiently. Hiring a lawyer is essential when it comes to estate planning in BC, as they have the expertise and knowledge necessary to navigate the complex laws that govern the distribution of assets after death to avoid estate litigation.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.