What Is a Will?
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Helen Low, QC in January 2016.|
A will is a legal document that leaves instructions about what the person making the will wants done with their property and obligations after they die.
Why should you make a will?
Making a will gives you some control over what happens to your estate after you die. Your estate is made up of the property and possessions, also known as the assets, that you own at your death (with some exceptions explained below). With a will, you can make sure the things you own go to the people you want to have them.
A will can also help the people who outlive you. They can feel sure that they are carrying out your wishes. Putting your intentions into a will can help save your family members and those you leave things to time, effort and money.
"I've decided I need to make a will. Both my sisters want me to leave my opal ring to them. The ring originally belonged to our mother, and is a family heirloom. I can now see that unless I'm very clear in my will about who should have the ring, there will be family conflict later."
- Maria, Nanaimo
What happens if you die without a will?
If you die without a will, there is no way to prove what your wishes were. The law dictates how your estate will be divided. The rules are set out in the Wills, Estates and Succession Act. For example, if you have a spouse and no children, your estate passes to your spouse. If you have a spouse and you had children together, your spouse gets the first $300,000 value of your estate and half the balance; the other half of the balance is divided equally among your children.
There are further rules depending on the combination of relatives alive at the time of your death. The estate goes to the government if no relatives can be found.
Another result if you die without a will is that the court has to appoint someone called an administrator to deal with your estate. That person, usually a spouse or child, needs to file documents in British Columbia Supreme Court that ask the court to appoint the person to administer the estate.
If there is no one who applies to administer the estate, then the Public Guardian and Trustee takes responsibility.
Do you have to make a will?
The law does not say that you have to make a will. However, by making one you can make sure that your wishes about inheritance are respected.
"My sister Susan died without a will. A year before, she told me what she wanted done with the things she owned. Her wishes included giving her car to me. But without a will, the law says how the estate is divided. In Susan’s case, everything in her estate will go to her only child, Amy."
- Janet, Vernon
Does a will deal with everything you own?
No. A will generally doesn’t cover property that you don’t own exclusively. For example, a joint bank account or a house owned in joint tenancy has a "right of survivorship." When you die, any jointly owned properties will automatically become the exclusive property of the other joint owner. This property doesn’t form part of your estate.
Also, property where you have designated a beneficiary doesn’t form part of your estate. The beneficiary is entitled to receive the proceeds on your death. Common examples include a life insurance policy or a retirement benefit plan.
How is a will different from a power of attorney or representation agreement?
A will takes effect only after you die. A power of attorney and a representation agreement are ways to plan for the handling of your affairs during your lifetime.
With a power of attorney, you can give someone the legal power to take care of financial and legal matters for you while you are still alive. With a representation agreement, you can give someone the legal power to take care of health care and personal care matters.
Both a power of attorney and a representation agreement cease to have effect when you die.
What is a "living will"?
A "living will" is not a legal document in British Columbia. The term has been used to describe a person’s wishes for their health care treatments, and particularly treatments they do not want in an end-of-life situation. The options available in British Columbia to address health care wishes for an end-of-life situation are a representation agreement or an advance directive. Both are ways to plan for health care decisions that may need to be made before you die.
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