Wills and Probate
Wills and Estates Law Services
We can provide assistance in making your will, power of attorney and representation agreement. We can also assist you in making an application for probate in an estate matter after the maker of the will has passed.
Clients often ask “why should I make a will, I when I have nothing to give away”. The premise of a will is not that you have anything to leave to your heirs; rather it is about appointing someone to be your personal representative after you have passed. Your personal representative is called your trustee; previously and also currently called the executor.
If you die owning no assets you will still need to appoint a personal representative. If you die without a will it is called dying “intestate”. If a personal representative is still required, it will mean your family members will have to make an application to the Supreme Court of British Columbia to have an “administrator” of the estate appointed by court order.
What To Consider When Making Your Will
- Who will you select as trustee and, if you wish, co-trustee? Consider naming an alternate trustee in case the trustee is not able to act. Speak to these people to be sure they will agree to act.
- Do you want to leave bequests? Bequests are specific items of personal property (such as a car, jewelry, china, silver, art, furs, etc.) or a sum of money that you wish to leave to a specific person.
- To whom do you wish to leave the remainder of your estate? Spouse? Children? Charities? Is it to go directly or through a trust? If it is being left to children, are they to receive it immediately or at some future time? If the children are minors, you might want to specify a certain age at which they may take through an adult such as a parent or guardian.
- How do you want your estate distributed?
- If one of your children has died, do you want his or her children to receive that share, or do you want it to go to your other children?
- Who will you name as a guardian for dependant children or disabled adult children? Speak to this person first to make sure the guardian agrees to act.
- If you are in a second marriage and both of you have children from previous marriages, you may wish to consider the available options. For example, the remainder of your estate can go to: a) your spouse absolutely
- In the event that a minor (child, grandchild, niece or nephew) inherits a share of your estate, who do you want to receive their share?
- If one of your beneficiaries is dead, who do you want to receive their share?
b) your children absolutely
c) your spouse for his or her use while alive, and then, after your spouse dies, to your children
d) your children and the children of your spouse
It is very important that you and your spouse discuss the various options and agree upon your plans.
Power of Attorney
A power of attorney is written authority to act for another person in specified or all legal or financial matters. In most scenarios you will be appointing your current spouse or someone with the ability to handle your financial affairs if you are either out of town or deemed incapable of conducting your own affairs.
Are you going to have a power of attorney prepared at the same time you make your will? If so, consider the following:
- Who do you want to act on your behalf (this person is called your attorney)?
- Will the attorney's power be limited and specific or broad?
- Do you want the attorney to have power to act if you should become incompetent?
Do you want to name and appoint somebody to make decisions about your personal care if you become incompetent? In British Columbia we call this a representation agreement. You could name the same person that is your attorney under the power of attorney to be your personal representative.
A representation agreement is a legal document under the Representation Agreement Act of British Columbia and the only legal planning document to use when planning for health and personal care matters. A representation agreement is an essential document for quality-of-life until end-of-life.
Probate is a process that verifies a will is a true and valid “last will” under British Columbia laws. It lets the court know what to do with that person's estate. In cases where the deceased died owning assets in their own personal name, probate will be required in order to authorize the trustee to transfer or sell that particular asset.
A probate order will be required to transfer land, vehicles and bank accounts that are in the name of the deceased at the date of death into the name of the estate trustee.
Applying for probate can be both costly and time consuming and, in some cases, can be an unnecessary step. You can take a few precautions with respect to your estate planning and a few simple procedures that will allow you to bypass the need for probate. We can assist in providing you the advice you need in your estate planning.
Please contact us for further information on how best to plan your will, power of attorney, representation agreement or if we can provide you with assistance in probating an estate.