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.
You might also like
Write your own will in 5 easy steps
Can’t afford a will? The truth is you can’t afford not to have a will. Writing a will is the only way to retain control of your assets and nominate the beneficiaries upon your passing. It is nowhere near as difficult as many would have you believe. So, where do you start? How do you protect your assets upon your death?
It is fair to say that estate planning BC has changed over the last couple of years with the introduction of electronic wills and electronic storage. Where you have a relatively complex estate, you may require a degree of legal advice, while others may require little or no input from the legal profession. Whatever your situation, writing your own will is still relatively straightforward and something you should consider.
Estate planning issues
You must discuss estate planning issues with your advisers before attempting to write your own will. Even though there are several online wills BC, including the popular Staples will kit, you must be careful and ensure everything is in order. Online wills BC work well for those who have a reasonably simple estate. However, if your estate is a little more complicated, you should seek at least initial guidance.
Probate tax Canada
While there is no probate tax Canada, your estate will be charged a fee based upon the value of your assets. In British Columbia, the situation is as follows:-
- Estates valued at less than $25,000 will not attract any probate fees
- Estates valued between $25,000 and $50,000 will be charged a probate fee of six dollars for every $1000 worth of assets, or part thereof, between $25,000 and $50,000
- Estates valued in excess of $50,000 will be charged $14 per $1000 worth of assets by which the estate exceeds $50,000
- Those estates valued in excess of $50,000 will also attract an additional probate fee of $200
Any probate tax Canada due will be taken from your estate, reducing the amount available to distribute. If you decide to use a probate solicitor, you will probably be looking at additional fees of between 2% and 5% of the estate’s value plus VAT. Consequently, some people will take general legal advice and use this to write their own will.
The easiest way to write a will BC
The Staples will kit could be an interesting place to start if you have a moderately complex estate. As you will see with a quick Internet search, each Staples will kit offers a different degree of flexibility to suit your scenario. However, it is possible to write your own will without any third-party documentation.
Step One: Decide who will be your beneficiaries
Estate planning BC is critical, because without a will the courts will become involved, creating added expense and reducing the value of your estate. First, write a list of beneficiaries and what assets you would like to gift them on your death. If you decide to split your estate equally between numerous people, there is no need to specify individual assets.
Step Two: Appoint an executor
The appointment of an executor is an integral part of estate planning issues and something you should decide upon at a relatively early stage. Many people have friends and family as executors, while others choose those from a more formal profession, such as a solicitor. You will also need to appoint a backup executor in the event that your original choice is unable to fulfil their executor obligations.
Step Three: Create a formal document
It is essential that your will is marked as such and clearly revokes any previous wills in existence. Unless the document is titled explicitly as your will, it could be taken as advice with the courts potentially becoming involved. The online wills BC market is relatively large, with packages such as the Staples will kit proving very useful. In addition, many examples are available online to give you an idea of the format and specific wording.
Step Four: Specify miscellaneous provisions
While the distribution of assets is the central part of any will, there is also the opportunity to add specific miscellaneous provisions. This may include the appointment of a guardian for your children or someone to look after your pet. Unfortunately, many people retain these miscellaneous provisions in their minds but fail to add them to their will. Consequently, this is one of the estate planning issues which is often overlooked.
Step Five: Notarize and register your will
Under normal circumstances, your will would be signed off in the presence of a notary in British Columbia. This will involve two witnesses, at least 19 years of age, and the notary signing your document as a legal instruction. At this point, your will is live, although you will need to register the document with the British Columbia Vital Statistics Record Office.
Storing your will
There are numerous options when looking to store your will, one of many estate planning issues you will need to address. For example, you could keep a physical copy at home, with a friend or leave it with your local bank or solicitor. Recent changes to regulations now allow you to store (and write) your will in electronic format in the cloud. Wherever you decide to keep your will, make sure there are clear instructions about executing your instructions on your death!
Simplifying estate planning issues
In light of Covid, we saw several changes concerning estate planning issues, including the introduction of electronic wills and remote witnessing. This meant that two individuals (one of which would need to be a lawyer/notary public) could witness the document while being in electronic contact but without physically being in the same room. Many people expected these changes to be temporary, but they have been brought into BC law and are now part of estate planning BC.
Then there is the ability to store your will in electronic format, with several will cloud storage companies now emerging. This has injected a degree of competition into the estate planning BC market, which will eventually lead to a more competitive charging structure.
Are you ever too young to have a will?
When looking at estate planning BC, you must be over the age of 16 and of sound mind to make a will. Traditionally, those who die young without a will would typically see their assets distributed amongst immediate family. However, there is nothing stopping anyone over the age of 16 from writing their own will, in line with the relevant legal procedures, and allocating existing and future assets as they so wish.
However, this issue could be controversial if a young person was left a significant amount of money/assets as a beneficiary, for example, of their parent’s will. Even if the beneficiary was over the age of 16, some parents might decide to appoint a trustee to manage their inheritance. It will depend upon the individual situation, but it is possible to leave assets for a beneficiary under the short-term control of a third party.
Avoiding family feuds
While wills and inheritances are not the easiest of things to discuss across the dinner table, unfortunately, they can lead to long-lasting family feuds. Consequently, many people now look to write and register their wills away from family and friends, relying on executors. Some people have used family friends as their executors, but this can lead to issues with:-
Biased opinions on asset allocation
If an executor has a connection with one of the potential beneficiaries, or someone frozen out of your will, this could place them in a difficult situation. Even with the best intentions, it can be challenging to maintain an unbiased opinion in these situations. Is it fair to put a friend/acquaintance in such a position?
Negating gift instructions to an executor
The more detailed your will, the less chance it will be challenged in the courts. Leaving a gift in your will to an executor may raise some eyebrows in some situations. Where you influenced? Were you in a fit state of mind when preparing your will? Rightly or wrongly, these questions could form the basis for a legal appeal against your will.
Whether you seek the assistance of a friend, distanced from the scenario and not a beneficiary, or a close adviser will depend upon your situation.
Retain control of your estate!
Whether you are considering using something similar to the Staples will kit, writing your own will or taking advice from a solicitor, you need to retain control of your estate. If you don’t have a will, the courts will make the decisions; you will lose control of how your assets are distributed while potentially building up significant additional costs.
Failure to act today may see your loved ones stripped of their rightful inheritance tomorrow; those assets it took you years to build up. This is your chance to provide for them in your absence.
Simple 10-Step Estate Planning Checklist￼
The sooner you start, the simpler you will find estate planning! The longer you leave it, the more complex and the greater the chance you will miss out on regulatory and tax breaks. So, where do we start? By breaking down the process into simple bite-size bits….
Estate planning BC is simple in principle but can be pretty complex in practice, especially with no preparation. Essentially, you need to know your starting point, where you want to be, and the most efficient way to get there. Our estate planning checklist walks you through the process, prompts you to think about specific areas in isolation, and brings everything together at the end. Whether looking at online wills BC, trustees, beneficiaries or the ever-changing regulatory environment, there is much to consider.
1. Review Your Assets and Liabilities
The first stage of estate planning BC is to review your assets and liabilities, employment, investment and other sources of income. Even though many of us have an idea in our head as to what we are worth, liabilities and plans for the future, when written down on paper they may differ significantly. Therefore, every element of your financial life must be noted in this review. This ensures you can make plans for the efficient structure of your estate and gives you a starting point, a foundation going forward.
2. Appoint Financial Advisers
When you have a list of your assets, liabilities and income sources, this is the time to approach a professional financial adviser. They will sit down with you; look at your assets and liabilities in more detail and your hopes and aspirations for the future. While you will likely need some legal representation to complement your financial adviser, the degree of additional assistance will vary. If you have a relatively simple estate, it should be reasonably easy to keep the cost down when looking at estate planning BC.
Those with business interests and assets spread across Canada and the rest of the world may need specialist assistance. When it comes to business interests, there may already be pre-existing arrangements with directors/partners which need to be respected. In many ways, advice is the key in the early stages, as this will guide you in the appropriate direction.
3. Identify Your Goals
As we touched on above, if you don’t know where you wish to go, how will you know when you get there? Typically, people leave the vast array of their estate to family and close friends. Indeed there are rules and regulations regarding estates; if no will or instructions exist, assets will be shared out amongst spouses/partners, children and the wider family. So it is essential to recognise how you wish your assets to be shared at a relatively early stage.
Would you like your partner/spouse to receive everything and manage part on behalf of your children? If there are significant assets available, it may be an idea to set up a trust fund for your wider family. Do not automatically assume that those “left behind” are in synch with your thoughts. They may not know about your goals and wishes for your assets. You must leave no element of confusion!
4. Create an Estate Management Plan
The only way that estate management BC looks simple is because you have done the groundwork; you have started relatively early and taken it piece by piece. Now that you know your assets and goals for the future, it is time to establish a formal estate management plan. This will incorporate several individuals such as trustees, lawyers, financial advisers and beneficiaries. You may require additional assistance in some cases, such as a particularly complicated personal/business life.
The next stage of the estate planning checklist is to appoint the relevant people and build on the foundations with the legal paperwork.
5. Appoint trustees/executors
Whether we are talking about online wills BC or the more traditional written will, you must have trustees and executors in place. This prompts the question, what is the difference between a trustee and an executor? A trustee is in charge of managing the estate before it is passed to the beneficiaries. An executor is an individual/company appointed to carry out the deceased’s wishes. They will be involved in many activities, which can include any of the following:-
- Applying for probate
- Valuing the estate
- Settling inheritance tax
- Registering the death
- Arranging the funeral
- Closing relevant accounts
- Collating assets
- Distributing funds/assets
Many people are misguided and automatically assume that the executor and trustee have similar roles. This brings us to other questions, such as; can an executor be a beneficiary in British Columbia? While legally, there is no reason why not, from a moral/simplification point of view, the easiest thing to do is to appoint executors that are not beneficiaries.
6. Complete the Relevant Paperwork
Now that you have your team in place, your list of assets/liabilities and have begun taking formal advice, now is the time to complete the relevant paperwork. When we say “paperwork”, many will be aware that online wills BC are now recognised under the law and legally binding. Consequently, this section applies to both online and physical wills.
When it comes down to placing your instructions on paper, there is a growing trend toward excluding immediate friends and family from discussions. This allows the individual to remain focused on what they want, not being overly influenced by the hopes and aspirations of others. Unfortunately, even relatively quiet, unassuming people can turn into hard-nosed individuals if they feel they have been “wronged” in someone’s will. Therefore, you must add as much detail to your will as possible, leaving no room for different interpretations or legal wrangling.
Failure to create a watertight will can, and often has, resulted in legal action. This not only drags the individual’s family through the courts but can also lead to significant costs, which may be taken out of the estate. In this situation, nobody benefits.
7. Register Estate Documents
Even though there are numerous ways in which you can leave instructions after your death, many people still use the Canada Will Registry. This is a handy starting point for family and friends on your demise. The registration document will note executors and trustees, those allowed access, and details of how your estate should be split. While there is no legal requirement to register estate related documents prior to your death, if they are lost or destroyed, this can cause serious problems.
8. Store Estate Documents
There are numerous methods of storing estate documents to ensure they are to hand upon your death. These include:-
- Financial advisers
- Trusted parties
- Cloud services
It is also essential that out of date wills and estate related documents are correctly destroyed. Failure to do so will only cause confusion which could lead to more legal challenges and significant costs. In addition, you will make the situation much more transparent so that everyone knows where they stand.
In recent years we have seen the emergence of virtual storage facilities for legal documents. These services also ensure the timely release to trustees and executors. Due to a change in British Columbia regulations, it is now perfectly legal to store your will and last testament in the clouds. While slowly starting to be appreciated by the wider public, this is a significant development.
9. Adapt and Maximise Regulatory Changes
The idea that your estate planning checklist is a one-time visit, a one-off event, is a fallacy. As we have all seen, governments in British Columbia, across Canada and the globe are regularly changing financial regulations, including estate laws. While dependent upon the type of government, new rules may emerge which are beneficial, while others may increase the government’s tax take from your estate.
Whatever the situation, it is vital that you adapt your estate planning checklist to make the most of often complex regulatory changes. Your advisers should rubberstamp any significant adjustments to the structure of your estate.
10. Annual Review of Your Estate Planning
It is good housekeeping to review your finances and your estate planning checklist on an annual basis. Sometimes, you may require additional advice throughout the year, while other scenarios may require a simple box-ticking yearly meeting. However, you must sit down with your advisers regularly. It may be that your personal circumstances have changed, your finances have exceeded initial expectations, or there may be family issues.
An annual review ensures that there is regular communication between advisers and clients. It also allows all parties to discuss any issues at hand or potential challenges going forward. Do not underestimate the importance of an annual client meeting!
Fail to Prepare, Prepare to Fail
When looking at our estate planning checklist, everything appears simple, straightforward and obvious. This is the whole point of the checklist, breaking down a potentially complex task into more manageable bite-sized chunks. Focusing on specific issues instead of the broader picture encourages a high level of detail and greater understanding.
It is essential to have peace of mind while also exerting control of your assets before your death. This ensures that an estate that may have taken decades to build is directed at your preferred beneficiaries. By failing to prepare, you are preparing to fail; it is as simple as that!