Have assets that you’d like to protect? Family that you’d like to see taken care of?
Life is unpredictable, and death is the only guarantee. Sooner or later, you won’t be around to ensure your family’s future. Estate planning and will preparation are the only ways to ensure that your wishes are honored after you’re gone.
Protecting assets is a complicated legal exercise. It’s not something to attempt on your own. If you’re going to create the best estate plan for your situation it’s necessary to meet with a wills and estates lawyer.
What happens if you die without a will in British Columbia
Dying without a will in British Columbia is referred to as dying “intestate.” Your assets will initially be frozen before they are ultimately distributed in accordance with the Wills, Estates, and Succession Act.
- If you have a spouse and you have children in common, they get the first $300,000.
- If you have a spouse and no children in common, they get $150,000.
- The balance of the remaining money is then split between the spouse and the children.
- If the children are minors, then the money is held by the Public Guardian and Trustee until the children reach the age of 19.
- If there are no children and there is no spouse, the money goes to your parents, your brothers or sisters, or your nieces and nephews, in that order.
- If there are no nieces and no nephews, the government claims your money.
- Jointly held assets of any kind go to the other person who holds the asset.
If you are happy with this arrangement then you don’t need a will or an estate planner at this time. If you are not happy with this arrangement, then it’s time to sit down and discuss your options with an estate planning lawyer. Even if you are happy with this arrangement, you should be aware that there will be additional expenses and delays between your loved ones and your assets.
There is some good news here. There is no death tax or inheritance tax in British Columbia. Your estate will be required to pay any taxes that you owe to the government, but your beneficiaries will not have to pay taxes on their inheritance. They will have to pay tax on any subsequent earnings from inherited sources, but that is after the fact. For example, if you leave your son a rental property he won’t have to pay tax for acquiring the property. He will have to pay tax on the income he starts earning from that property.
What information does a lawyer need to prepare a will?
Your lawyer needs to be able to get an understanding of your entire asset profile. When you sit down with your estate planning lawyer you’ll want to bring the following documents.
- Checking account statements
- Savings account statements
- Other account statements like investment accounts, retirement accounts, money market accounts, or CDs
- Stock or bond certificates
- Tax documents
- Real estate deeds
- Appraisals on jewelry, art, coin collections or antiques
- Titles for cars, trucks, boats, or recreational vehicles
- Statements for all debts, including mortgages, loans, consumer debt, hospital bills, student loans, and other forms of credit
- A list of your beneficiaries that includes their full names, complete addresses and phone numbers, social insurance numbers, and their DoB
- Birth certificates or adoption papers for any minor children.
- The contact information for the person you would like to name as your trustee or representative.
Prior to coming in to meet with your lawyer you should make sure to have conversations with the following people:
- The person you would like to designate as your children’s legal guardian, if it’s not your spouse. Make sure you have their permission before proceeding to name them.
- The person you would like to designate as your trustee or executor. They can’t be forced into the role, so you need to make sure they’re willing to do the job for you.
Once you’ve gathered all of these documents and had your conversations, you’ll be able to have a productive meeting with your estate planning lawyer.
Does a lawyer have to prepare a will?
Not necessarily, but it’s a good idea.
In order for a will to be valid it must be in writing, signed by the will-maker, and witnessed by two individuals who will not be beneficiaries of the will. You must be at least 16 years old to write your will, and your witnesses must be 19 years old. If the will was written before your marriage and doesn’t meet the Wills, Estates, and Successions Act requirements your spouse may challenge the will.
Sounds easy, right? Certainly if you don’t have many assets it may well be. Yet if you have a complex asset profile mistakes in how you word certain things could change how your wishes are carried out. In addition, if you have step-children, charities, or other beneficiaries that wouldn’t normally be in the line of succession it will take a lawyer’s help to ensure that your assets are distributed in accordance with your wishes.
Turning to a lawyer means creating a will that is air-tight and difficult to challenge. It means speeding up the process by which assets are distributed to the people you love the most. It means having the peace of mind that comes with knowing you’ve done everything you could to take care of your loved ones, and to leave a legacy.
How long does it take for a lawyer to prepare a will?
If you come to your meeting prepared we can usually get a will completed in 24-48 hours. If you need more complex estate planning vehicles, such as trusts, then it might take a little bit longer to get everything set up.
If you need a more complex estate plan we can usually get that finished within a week.
How much do lawyers charge for the preparation of a will?
Much depends on the complexity of your estate planning needs. The average cost of a will and estate plan in British Columbia ranges from $400 to $3000. It’s usually based on the lawyer’s hourly rate.
When you sit down with us we’ll discuss our rates before we agree to represent you, and you’ll know exactly how much you’ll need before you’ll have to proceed.
Keep in mind that you should review your will every three to five years to make sure it still reflects your current wishes and financial situation. You should also review your will whenever you have a major change in life circumstances, such as marriage, divorce, separation, or the death of a spouse.
What is the difference between a will and estate planning?
A will is one component of an estate plan. If you have very simple assets it may be the only estate planning vehicle you require. If you have more complex needs then you may need other vehicles, such as trusts, joint ownership, and life insurance policies, to adequately protect your assets and care for your beneficiaries.
Estate planning covers every aspect of what happens when you die. It covers who will be the guardian of your children. It covers who will receive the balance of your retirement accounts. It covers who will will receive the proceeds from your insurance policies. It covers who will get to keep your real estate after you die.
A will can do much of this work, but it can’t always do all of it well. For example, a trust allows you to bypass the probate process, which saves your family both time and money. For example, if you want to leave a property to your child you can help them bypass the probate process by making them a joint owner now, ensuring they get the “right of survivorship.” You would then want to back them up as the owner in your will to ensure the courts don’t demand your child return the property to the estate to be distributed according to your will. It is very important that every move you make be made congruently, so that each legal vehicle backs up every other legal vehicle that you put into place.
A will, on its own, is also an inadequate tool if you own a business, have step-children or multiple marriages, have a desire to leave part of your estate to charity, or if you have minor children. Wills can be challenged. Often, you need to take multiple steps to build an estate plan that’s strong enough to accomplish your wishes after your death.
When can a will be challenged?
In British Columbia, wills may be challenged in court by the spouse or child of the will-maker. Either party would have to prove that you failed to “make adequate provision for their proper maintenance and support.” Only biological children and adopted children may do this. Step-children cannot make this kind of claim.
A will may also be challenged under other circumstances:
- The challenger has proof that you weren’t of sound mind and body when you prepared the will.
- The challenger has proof that someone had you under duress or influenced you to change your will via fraud or intimidation.
- The challenger can show that there is a mistake in the will.
- The language in the will is vague, uncertain, impossible to carry out, or difficult to interpret.
- The challenger played a role in “enriching” the will maker but has received nothing on the will-maker’s death. This is called a constructive trust or an unjust enrichment claim.
When considering whether or not a will is fair, the courts consider the following factors:
- Your reasons for distributing your assets in the way that you did.
- The value of your assets.
- Your own financial circumstances and the financial circumstances of the beneficiary or beneficiaries.
- The challenger’s relationship with you, the will-maker.
- Whether the challenger depended on you financially.
- Which assets, if any, are passing outside of the estate to the challenger, or to others.
- Gifts made to the challenger while you were still alive.
- Whether the challenger has physical or mental disabilities.
- The court’s estimation of what a rational will-maker would have done. For example, if you choose to leave an adult child out of the will the court will need to find that your choice was a rational, reasonable one.
- Whether other beneficiaries were in a position to dominate, influence, or exhaust the will-maker into favoring them.
- Whether the challenger counts as a common-law spouse.
When you work with a lawyer you vastly reduce the chances that someone will be able to successfully challenge your will through these methods. Your lawyer can ensure there are no mistakes or points of vagueness in your will, for example. Your lawyer can also help you think about individuals who might be able to make an enrichment claim against you and help you adjust your plan in a way that accounts for those individuals.
Why choose Merchant Law for your estate planning needs?
Merchant Law has retained some of the most experienced lawyers in British Columbia. Many of our lawyers have over 30 years of experience with wills and estate planning. Many have a background in business, civil, and real estate law, all of which can provide additional insights which can help you. Many of our lawyers have also been published in prestigious law journals and have won awards for their legal achievements.
We’re also prepared to defend your interests if your estate plan is ever challenged in court. The lawyers at Merchant Law are known as some of British Columbia’s toughest litigators.
Gather your documents and call us today at (604) 609-7777 to set your estate planning appointment. Don’t put it off. Life is unpredictable. Don’t leave regrets in your wake should yours come to an unexpected end.
We have offices in Surrey, Kelowna, Langley, and Victoria but serve the entirety of British Columbia. We also offer remote appointments. Contact us today to get started.