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New legislation: Electronic wills in British Columbia (BC)
While will writing is not the kind of conversation you would like to have across the dinner table, it is a crucial subject for individuals and families. Failure to write a will could lead to an array of complications and expenses with a process that may drag on for some time. We know that many people prefer their will to remain private before their passing, which can help avoid friction, arguments, and even legal action.
Before taking a look at the changes in legislation, let’s first go through some information about wills in general.
Do you need a will in British Columbia?
If you die without a will in BC, this is described as having died intestate and means the courts will decide how your assets are distributed. In line with provincial laws, an executor will be appointed to review your family situation and propose how your assets will be split. The hierarchical family tree tends to be:-
- Nieces and nephews
This legal process is unlikely to consider any fractured family relationships. Consequently, your assets may not be distributed as you would have preferred. By writing a will, you can specify how your assets will be split.
Writing a will in BC
The cost of writing a will in British Columbia will vary depending on your route. If you decide to use the services of a solicitor, there are various charges to consider, including:-
- Preparing the will
- Storing your will
- Executing your will on death
Even though using a solicitor is the more traditional method, many people are unaware that you can write your own will. Again there are specific issues to consider, such as:-
- Ensure the will is valid from a legal point of view
- Advice on completing the will
- Storing your will
- Execution on your death
While a do-it-yourself will is significantly cheaper than a solicitor, many people prefer to involve the legal profession to ensure their will is legal.
Where to store a will BC
Those looking to store a will in British Columbia have several historical options and one recent change to will writing regulations. It is a problematic quandary; where can I store my will for safekeeping?
Store a will with a solicitor
Even though it is perfectly possible to write your own will with legal standing using online services, many still prefer to use a solicitor. Consequently, the vast majority of wills today are retained with a solicitor until the person’s death.
Store a will at home
There is always the option to store your will at home in BC, but this option has obvious risks. The document may be lost or destroyed in the event of a fire, for example. This would lead to your estate being distributed as having died intestate. Many people have a safe in their home, which has obvious benefits but only if people know the documents are there.
Store a will with a friend
Whether an executor or a friend, it may be an option to store your will with a third party that may have safer storage facilities. However, this option has obvious risks if your relationship breaks down, they lose your documents, or nobody knows where they are on your death.
Store a will with your bank
Some banks and other financial institutions offer storage facilities to their customers. It may be that you choose to store your will with a British Columbia bank with instructions left in the event of your demise. Where there is only one original hard copy of your will, there is always a risk that it may be lost or destroyed.
Store a will electronically
Under recently updated BC laws, you can now create an electronic will with an electronic signature, which can be stored in the clouds. Whether or not you prefer to retain a hard copy in a safe place is up to you, but electronic wills are accepted in British Columbia from a legal perspective. Furthermore, as you can literally store your will as a locked file, only available to certain people in the event of your death, it has opened up new opportunities with cloud storage services.
Using a will registry in British Columbia
Many people use the services of provincial will registries, which allow you to store details of your will where they can be located on your passing. Seen by many as a backup service, this is another way to ensure that legally binding documents will be available on your death.
Electronic wills in British Columbia
Like many provinces across Canada, BC authorities were forced to bring in an array of new regulations due to Covid-19. Some of these changes legalized the creation and witnessing of electronic documents, including wills. Even though many assumed this would be temporary, these changes have been written into BC law in relation to wills, estates and trusts.
What is an electronic will BC?
Under the new regulations, an electronic will is defined as in a form which can be:-
- Recorded or stored electronically
- Read by a person
- Reproduced in visible form
As part of the regulation change, it is now possible for the two witnesses to sign “in each other’s electronic presence”. This means that the witnesses sign the document simultaneously, even if they are not physically together. It is important to note that one of the witnesses should be a lawyer/notary public, and the document must be signed and witnessed in accordance with the regulations.
Altering and revoking electronic wills
Now we come onto the subject of altering and revoking electronic wills, which can be done in several ways:-
- Deleting an electronic version of the will with the intention of repealing it
- Destroying a paper copy of the will, with witnesses present, with the intention to delete the electronic copy
- Replace the electronic will with an up-to-date document
- Signed declaration from the will-maker revoking all or part of the electronic will
It is now as easy to create, edit, and destroy an electronic will as it is a paper copy. The fact that you can also store electronic wills in the cloud brings us onto the service we offer here at Time Secured.
Is it time to visit your will arrangements?
While many people are perfectly able to create their wills and arrange storage, it is not always that easy to ensure your instructions are honored upon your death. However, we can store your electronic will in the clouds using the Time Secured service. Then, using a regular check in system, we will be able to confirm that you are still alive. Finally, all of your electronic documents will be sent to the relevant parties on your passing. This will ensure that your instructions are carried out to the letter, as swiftly as possible.READ MORE
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Ultimate Guide to Writing Your Own Will [With Examples]
“Do I have to pay a lawyer to draft a will?” If you’re reading this, chances are you’ve asked yourself this question.
Well let me reassure you; you really don’t. The toughest thing about drafting your own will is navigating through the legal requirements, technical jargon, and the ocean of rules and regulations. If you screw up your taxes, you can always go back and correct it; but if you screw up your will, there are no do overs for obvious reasons.
That’s why we’ve set out to create the most comprehensive guide to will-writing on the internet that’s simple to follow so that anyone can draft a legally recognized will. That being said, let me preface this by saying: we would still recommend you to see an estate attorney if your estate situation is complex. This is a guide for people with relatively simple estates that would like to save on costs.
We want to make sure our information is accurate. Therefore, we read the Law Society’s Professional Legal Training Course material so you don’t have to.
Why Even Write a Will? The Importance of Estate Planning
Before we get into the nitty gritty, it’s important to understand why having a will is so important.
If someone was to pass away without a will, that person is said to have died intestate. In the case of a person passing intestate, their estate will be distributed based on preset statutory rules.
Here’s why passing without a will might not be ideal for you:
- Risk of beneficiaries being disqualified from assistance programs
Since you have no control over how your estate will be distributed, the result might disqualify your beneficiaries from assistance programs.
Here is an example: Your spouse was on BC’s income assistance program. If you pass without a will, the statutory rules of intestate allocated $50,000 to your spouse, increasing their assets past the income assistance eligibility threshold. Your spouse gets removed from income assistance.
- Risk of unfavorable asset distribution in other jurisdictions
If you’re someone who owns real property in other provinces or countries and you pass without a will, the assets you own in other jurisdictions will be distributed according to the rules of that specific jurisdiction which may not be ideal.
- Your estate may not be allocated to the beneficiaries who need it most
If you have children or other beneficiaries, your spouse will not be entitled to the entire estate according to the rules of intestacy. This may be troublesome if your spouse needs significant support from the estate. Here is a chart of how your assets would be distributed according to the rules of intestacy:
|Spouse and no descendants||Entire estate to spouse|
|Spouse and descendants of intestate and spouse||to spouse: preferential share of $300,000; furnishings of spousal home and right to acquire spousal home from estate for 180 days after representation grant |
residue: half to spouse; half to intestate’s descendants pursuant to
|Spouse and descendants of intestates but not spouse||to spouse: preferential share of $150,000; furnishings of spousal home; and right to acquire spousal home from estate for 180 days after representation grant |
residue: half to spouse; half to intestate’s descendants pursuant to
|More than one spouse||spousal share divided as the spouses agree or as determined by the court|
|Descendants but not spouse||equally among the descendants, pursuant|
|Parents but no descendants||equally to surviving parent or parents|
|Descendants of parents (deceased’s siblings) but no parent of descendants||equally to the descendants of the intestate’s parents or parent|
|grandparents or descendants of grandparents (deceased’saunts, uncles, cousins) but no descendants, parents, or descendants of parents||equally to surviving grandparent(s) or, if any grandparent is no longer surviving, that part to descendants of the deceased grandparent|
|great-grandparents ordescendants of great grandparents, but nodescendants, parents,grandparents, or descendants of grandparents||equally to surviving great grandparent(s) or, if any great-grandparent is not surviving, that part to descendants of the deceased great grandparents|
Here is an example of how assets will be distributed if a person passes intestate:
- Loss of distribution control if you have a sole successor
If you pass without a will and have a sole beneficiary who is a minor or is mentally incompetent, the Public Guardian and Trustee will have to be notified and may take over the responsibility of your estate distribution. This not just results in you losing control of how you want to distribute your estate, it also results in additional costs.
- Avoidable taxable gain and liability for estate tax
Assets that can roll over to your spouse on a tax deferred basis generally can’t roll over to your children on a tax-deferred basis. So in the case that someone passed away without a will, the asset allocations according to the statutory rules might mean extra costs in the form of taxable gains and liability for estate tax.
- Guardian for minor children
If you pass away intestate, you lose the ability to select a guardian for minor children (unless you’ve already done so under the family law act) which can be unfavorable for your child depending on who the court appoints as a guardian.
What to Include in the Will
Now that we’ve talked about how important it is to have a will, we can go over what elements are mandatory to include in a will.
The preface paragraph needs to identify who you are and confirm the intention that the will is intended to be your last will.
- Revocation of all former wills
Since the court only recognizes the most updated will, it’s imperative to include a paragraph specifically stating that you intend to revoke all previous wills as well as the date of this current will.
- Appointment of executors and trustees as well as alternatives
An executor is someone that you appoint to handle your estate and carry out your will after you pass. A Trustee is someone who manages specific trusts for you. It’s a good idea to list out your executors and trustees as well as 2 or more alternatives in case they are unwilling to act or continue to act.
- Appoint Guardians
Passing away with minor children is one of the most worry-inducing situations to be in. Everyone wishes to pass away knowing that their children will be properly taken care of. Make sure to include a section appointing guardian(s) as well as 2 or more alternatives just to be safe.
This is probably the most important part. In this section, you list out how you want to distribute your assets amongst the beneficiaries. Try to be as comprehensive and specific as possible to ensure your will gets carried out as you intended.
- RRSP/RRIF, debt, or life insurance beneficiary designations
Outline how to allocate your RRSP/RRIF accounts and life insurance payouts if any. Then include how to deal with debt like funeral expenses, income tax, and estate related taxes as well as which trustee you would like to handle this task.
- Administrative powers
In this section, you may grant your executor specific administrative powers. Couple examples are:
- The power of sale
- The power to compromise claims of creditors
- The power to value and distribute property
- The power of investment
- The power to borrow, secured by mortgage or pledge
- The power to manage real estate
- The power to make income tax elections and designations.
Conditions for a Will to be Recognized in Court
WESA Technical Requirements
WESA (Wills, Estates, and Succession Act) has set some requirements for a will to be considered valid:
- The will must be in writing
- The will must be signed at its end by the will-maker (or by another person in the will-makers presence and by the will-makers direction)
- The will-maker must make or acknowledge the signature in the presence of two or more witness who are both present at the same time
- Two or more or more of the witnesses must sign the will in the presence of the will-maker
- The will-maker must be at least 16 years of age
*WESA has recently broadened the meaning of presence to include remote signing where parties are in each other’s “electronic presence”
Now for the most important part. No matter how perfect and comprehensive your will is, it means nothing if the court does not recognize it to be legal. When that happens, your assets will be distributed as if you passed away without a will, so we want to make sure we get this right. Here are the conditions for your will to be recognized in court according to the Law Society:
- Will-maker must have intended the will to have a dispositive effect
Dispositive is basically a fancy (legal) way of describing “the intent to settle a claim, legal issue, or controversy”. So this condition means that the will-maker must intend for the will to serve the purpose of a will.
- Will-maker must intend for the will to not take effect until after death and be entirely dependent on death for its operation
This one is pretty self-explanatory.
- Will-maker must intend for the will to be revocable
This means that the will-maker must understand that the will can be altered or canceled and intend for the will to be so.
- Will-maker must have executed the will in accordance with the formal requirements of WESA
These are the technical requirements we went over in the above section.
In addition to following the technical and legal requirements, WESA also requires the will-maker to be mentally capable in order for the will to be considered valid. To be mentally capable of making a will means:
- The will-maker must understand the nature of the act of making a will and should intend to make a disposition of property effective on death
The person writing the will must understand that the document is intended to resolve claims, legal issues, or controversy of their property after your passing. The will is not valid if the will-maker was coerced or manipulated into making it.
- Will-maker must be free of mental disorder
Victims of mental disorders such as Alzheimer’s, dementia, and schizophrenia are deemed as not having the testamentary capacity to create, amend or revoke a will. You will still be able to do these things if you are diagnosed early enough and you are deemed to have testamentary capacity by a medical professional. If your family history has proven you are prone to these mental disorders, it is advised to make a trusted person as your POA (power of attorney) so that if the time comes, they can make amendments for you.
- The will-maker must know the nature and extent of their property
You must have a general understanding of the property you own. Don’t worry, the court will not expect you to be able to list out every item of your investment or real estate portfolio.
- Will-maker must know the persons who are the object of their bounty
This means that you must know who the beneficiaries are as well as what you are giving them.
- Will-maker must understand the manner in which their estate will be distributed
You will need to know and understand how your estate will be distributed to your beneficiaries.
One thing to keep in mind is that testamentary capacity is not something that can be diagnosed. Medical evidence only serves as important and relevant information. Ultimately the court is open to reach a conclusion based on the evidence it has.
Signing (Executing) the Will
The requirements for will signing is quite straightforward. It simply requires your signature, followed by the signature of 2 other witnesses that are not beneficiaries indicating that they witnessed your signature (order matters; you must sign before your witnesses).
Although it’s not required to go to a notary for the will to be legally valid, if your situation is more complex (ex. Child support obligations, blended families, foreign investments), it might be a good idea to go to a notary to save yourself from future complications.
In BC, due to covid-19, the government has permitted online witnessing and signing of wills so you are able to execute your will in the comfort of your home using services like NotaryPro.
After signing the will
After a will has been signed and executed, it might be a good idea to file a wills notice with Vital Statistics. The will notice requires your full name, date, your place of birth, date of execution and the location of the will. By filing a will notice, you now have official records of your estate planning efforts and will minimize further complications down the road. Examples where the deceased has written a will but, his family only knows that he put it in an unknown safety deposit box are quite common.
Wills storage best practices
The Law Society official recommendation is to keep wills in a place where they can be readily located and retrieved when required and free from risk of accidental loss or destruction. If you search “where to store wills” on Google, you will get some interesting results (like in your freezer as it’s the last place to burn in a fire…) Here are some recommended options for will storage:
- Store it with your Lawyer
If you went to a lawyer to draft your will, most attorneys will give you the option of storing your will with them for a fee. If you choose to leave your will with your attorney, make sure to tell your family that you’ve done so and mention it in your will notice if you are planning to submit one.
- Safety deposit box (only if you’re comfortable with someone else having access)
Only store your will in a joint safety deposit box. If nobody but you has access to the safety deposit box, a court order is required for your family to access it after you pass, which could take a long time. This further delays the probate process and might cause nuances for your loved ones.
- Online Will Storage
Since the amendments to Bill 21, BC now recognizes electronically stored wills. Estate document storage tools such as Time Secured are becoming increasingly popular due to its ability to automatically give access to executors and beneficiaries upon passing.READ MORE