Drafting a Will: The Basics

Before worrying about technical requirements of a valid will, it’s important that testators understand the basics. Will writing goes well beyond simply distributing assets to different loved ones, and testators should understand this. Some of the most important tasks of a testator include: appointing an executor, appointing legal guardians and representatives, choosing beneficiaries and choosing how to distribute the estate.

Appoint an Executor

Your executor is responsible for its administration of your estate after you pass away. Some of the tasks an executor is responsible with include paying outstanding debts, selling estate assets, and distributing gifts to beneficiaries.

Depending on the size and complexity of your estate, the job of the executor can be extensive. We recommend that you choose an executor who you can trust and is willing and able to complete the job. The executor can be a beneficiary in the will. Sometimes, people will name all their children as joint executors of their will. This way, each child has a part in the administration, and it helps to distribute the work load. Having multiple executors can reduce the risk of fraudulent behaviour, as each executor has to approve of the decisions made on behalf of the estate. However, it may give rise to other problems in the administration process if the joint-executors disagree on certain issues.

Appoint a Guardian

If you have children under the age of 19, it’s important to appoint someone who will be their legal guardian. If both of the child’s parents pass away, a guardian is someone who will be the caretaker for your minor children. When a guardian is not named in the will, the family courts have to appoint someone. To have full control, it’s always best to include an appointed guardian in your will.

When appointing a guardian, it’s best to speak with family members to see who would be the best fit for your children. Depending on their age, it can be a huge responsibility to undertake guardianship and the appointed guardian must be willing. Typically, an appointed guardian is one of the testator’s siblings or another close family member.

Plan For Future Incapacity

Will-writers should appoint a power of attorney to handle their financial and legal matters should they become incapable. The circumstances under which the person can make decisions is dictated by the power of attorney agreement. The most common form is the enduring power of attorney. This is when you appoint an attorney to make decisions for you only if you become incapable in the future. The appointed enduring attorney only has the authority while you’re incapable of making the decision on your own behalf.

A representation agreement is very similar to a power of attorney agreement. However, representatives are usually tasked with making health and personal care decisions. It’s often a good idea to appoint a representative and a power of attorney as part of one’s estate plan. Your estate plan can also include directions and for the representative to follow, ensuring they understand your wishes.

If your estate plan doesn’t appoint a power of attorney or representative, a committee must be appointed if you become incapable in the future. Unlike the power of attorney or representation agreement where the parties simply create a contract, a committee must apply to the courts to be given authority. Since this is a court process, it will often be lengthy. Also, the incapable person would have little say in who applies and becomes their committee acting on their behalf.

Pick Beneficiaries

Beneficiaries are the people who you are going to give gifts from your estate to. Beneficiaries in a valid will can be anyone; inheritance is not limited only to family members of the deceased. People can also select charities and organizations as beneficiaries in their will. While testators have full control to choose how to distribute their estate, spouses and children cannot be unfairly disinherited in BC. Testators must make adequate provisions for the proper maintenance and support of their spouse and children in their will. In some cases, parents can have valid reasons for disinheriting a child which allow the testator to override this provision.

Some testators choose to only name their children and spouse as beneficiaries, while some testators name close friends, charities and relatives as beneficiaries. It’s up to you as the testator to decide this on your own, without being unduly influenced by anyone.

Distribute the Estate

Once you know who you want to give your estate to, you must decide how much of and what to give each beneficiary. You can also decide how you want the estate assets distributed (i.e. to distribute your physical assets as they are, or sell them and distribute the funds). When gifting a large asset like a house, it can bring along many responsibilities and expenses for the beneficiary. It’s a good idea to work with the beneficiary and understand their position on receiving the gift.

Sometimes it’s easiest to sell all the estate assets and give each beneficiary a specific percentage of the estate residue. This isn’t always the case, as families often have assets that they want to pass down for generations to come. In the end, it’s at the discretion of the testator how they choose to distribute their estate.

The Formalities of a Valid Will

By law, you do not need a lawyer to draft a valid will in BC – you can make your own. However, we strongly recommend testators get advice from an experienced will-drafting lawyer. There are various different formalities to consider when writing a valid will. In addition, there are many different tips and tricks to reduce any risks of confusion when people are reading your will. As an example, the wording in a simple provision can have various different legal meanings which can interfere with the administration of the estate in the way which you intended.

When a testator is giving a gift to “their children,” it may seem obvious nd clear who is to receive the gift. However, does “their children” only include birth children? This could include their stepchildren as well. This is only one of hundreds of different mistakes and misunderstandings that can arise from a poorly drafted will.

Even though there are many do-it-yourself kits for wills online, we encourage everyone to at least hear the advice of an estate lawyer before finalizing their will. Fixing any discrepancies or ambiguities before it’s too late can save your estate and your family significant amounts of time and money in legal fees. If you need help drafting your will, contact an experienced estate lawyer today. We can ensure that your will is written properly and won’t cause any problems for your loved ones after you have passed away.

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.