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Difference between revisions of "Preparing Your Will: Step-by-Step"
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Preparing Your Will: Step-by-Step (view source)
Revision as of 00:08, 6 February 2016
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{{Writing Your Will TOC}} | {{Writing Your Will TOC}} | ||
You can make a will on your own, or have someone such as a lawyer or a '''notary public''' help you. There are rules and formalities that must be followed, no matter how simple the will, or the will may not be valid. | You can make a will on your own, or have someone such as a lawyer or a '''notary public''' help you. There are rules and formalities that must be followed, no matter how simple the will, or the will may not be valid. | ||
The person making a will is referred to as the '''will-maker'''. | |||
== Requirements for a will == | == Requirements for a will == | ||
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* be age 16 or over, | * be age 16 or over, | ||
* be mentally capable of managing your own affairs, and | * be mentally capable of managing your own affairs, and | ||
* agree with the contents of the will at the time you make it; in other words, if someone | * freely agree with the contents of the will at the time you make it; in other words, if it is proven in court that someone has pressured you to make a will that doesn’t represent your intentions, the will is not valid. | ||
In considering whether a person is mentally capable to make a will, key factors are: | In considering whether a person is mentally capable to make a will, key factors are: | ||
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It used to be that a person who witnessed a will could not also receive a gift under the will. But now, a witness may be able to inherit under a will. The witness has to apply to court and show that you '''intended''' to make the gift even though the person was a witness to the will. If the court isn’t satisfied, the gift to the witness is void. Either way, the remainder of the will is not affected. | It used to be that a person who witnessed a will could not also receive a gift under the will. But now, a witness may be able to inherit under a will. The witness has to apply to court and show that you '''intended''' to make the gift even though the person was a witness to the will. If the court isn’t satisfied, the gift to the witness is void. Either way, the remainder of the will is not affected. | ||
Ultimately, it remains good practice for your witnesses not to be people - or the spouses of people - who are named as executors, alternate executors, or beneficiaries under the will. | |||
The witnesses do not need to read the will. All they need to do is watch you sign your name to the will, and sign the will themselves in front of you. | The witnesses do not need to read the will. All they need to do is watch you sign your name to the will, and sign the will themselves in front of you. | ||
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Typically, a will has several sections: | Typically, a will has several sections: | ||
* '''Initial matters:''' The first section of the will [[Appointing an Executor|appoints the '''executor''']]. The executor is the person who is responsible for carrying out the instructions in the will. | * '''Initial matters:''' The first section of the will [[Appointing an Executor|appoints the '''executor''']]. The executor is the person who is responsible for carrying out the instructions in the will. The will can specify the extent of the executor’s powers in administering the estate. | ||
* '''Distribution of the estate:''' The will sets out who receives your possessions and property, also known as your '''assets''', and under what conditions. The people to whom you give things are called '''beneficiaries'''. You can make gifts of specific property or cash gifts. Whatever amount left over after debts and taxes are paid and gifts are distributed is called the '''residue''' of the estate. In the will, you say who receives the residue, and in what portions. | * '''Distribution of the estate:''' The will sets out who receives your possessions and property, also known as your '''assets''', and under what conditions. The people to whom you give things are called '''beneficiaries'''. You can make gifts of specific property or cash gifts. Whatever amount left over after debts and taxes are paid and gifts are distributed is called the '''residue''' of the estate. In the will, you say who receives the residue, and in what portions. | ||
* '''Other details:''' The will can also include other details as you wish. For example, if you have any children under age 19, you should name a '''guardian''' for them in the will. You should also provide for financial assistance for the guardian to cover the costs of raising the children. | * '''Other details:''' The will can also include other details as you wish. For example, if you have any children under age 19, you should name a '''guardian''' for them in the will. You should also provide for financial assistance for the guardian to cover the costs of raising the children. | ||
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{{PLSTipsbox | {{PLSTipsbox | ||
| text = | | text = You can designate the beneficiary of a life insurance policy or benefit plan in your will, even though the proceeds “pass outside the will” and don’t form part of your estate. If you do, the beneficiary designation will alter any previous designation. Similarly, a beneficiary designation you make in your will may be altered by a later designation that is not in a will. | ||
}} | }} | ||
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Spouse includes a common-law spouse, which is a person you have lived with in a marriage-like relationship for at least two years. | Spouse includes a common-law spouse, which is a person you have lived with in a marriage-like relationship for at least two years. | ||
If your spouse or children wish to dispute your will, they have to apply to | If your spouse or children wish to dispute your will because they feel they have not been adequately provided for, they have to apply to court within 180 days after '''probate''' has been granted. (Probate is a legal procedure that confirms the will is legally valid and can be acted on.) The person disputing the will needs to prove in court that the will does not provide for them adequately. | ||
Separated spouses generally have no legal claim to dispute the arrangements made in your will. Other relatives who are left out also generally have no claim. | Separated spouses generally have no legal claim to dispute the arrangements made in your will. Other relatives who are left out also generally have no claim. | ||
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{{PLSTipsbox | {{PLSTipsbox | ||
| text = You should try to make a will when you are in good health. To make a will, you need to be mentally capable. Your mental capability can be affected by illness, an accident, or drug treatment. | | text = You should try to make a will when you are in good health. To make a will, you need to be mentally capable. Your mental capability can be affected by illness, an accident, or drug treatment. If you are proven to have been mentally incapable when you made your will, it will be considered void and of no legal effect. | ||
}} | }} | ||
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However, getting professional help to make a basic will does not cost very much, and having your will made by a lawyer or notary public is the safest way to avoid mistakes. Using an experienced lawyer or notary can give you the peace of mind of knowing that your will is properly drafted and valid, and that your affairs will be handled according to your wishes. | However, getting professional help to make a basic will does not cost very much, and having your will made by a lawyer or notary public is the safest way to avoid mistakes. Using an experienced lawyer or notary can give you the peace of mind of knowing that your will is properly drafted and valid, and that your affairs will be handled according to your wishes. | ||
Getting advice from a lawyer or notary becomes particularly important where there are features such as a blended family, a charitable gift, property outside of British Columbia, a family business, or a wish to disinherit potential beneficiaries. | Getting advice from a lawyer or notary becomes particularly important where there are features such as a blended family, a charitable gift, property outside of British Columbia, a family business, a desire to hold property in trust for someone (such as a child), or a wish to disinherit potential beneficiaries. | ||
Ask a lawyer or notary how much it will cost before you decide to give the job to him or her. To find a lawyer or notary, see the [[Where to Get Help with Writing Your Will|Where to Get Help section]]. | Ask a lawyer or notary how much it will cost before you decide to give the job to him or her. To find a lawyer or notary, see the [[Where to Get Help with Writing Your Will|Where to Get Help section]]. | ||