A will is a legal instrument which sets out how your estate (including both your assets and liabilities) will be distributed upon your death. If you pass away without a validly executed will, your estate will be distributed in accordance with the default “intestacy” rules set out in Part 3 of the Wills, Estate and Succession Act of British Columbia (“WESA”). Accordingly, the answer to the question: “When should you make a will?” is quite straight forward – you should make a will when you want your estate to be distributed in a manner that is different than the intestacy scheme set out in WESA.
Please find below a brief summary of how your estate would be distributed under the rules of intestacy set out in WESA:
(1) If you leave a spouse (married or common law) but no descendants:
Your spouse will get 100% of your estate.
(2) If you leave a spouse and descendants (biological or adopted children, but not step-children):
Your spouse will get all household furnishings and a preferential share of your estate ($300,000 if your spouse is a parent of the descendants or $150,000 if your spouse is not a parent of the descendants). The remainder of your estate will be distributed as follows: 50% to your spouse and 50% split equally between your descendants.
(3) If you leave two or more spouses (for example, a married spouse and common law spouse):
Each of your spouses will get a portion of the share of your estate to which a single spouse would be entitled (see above). The portion to which each spouse is entitled is the proportion agreed to by the spouses or determined by the court.
(4) If you leave no spouse but descendants:
Your descendants will split your estate equally.
(5) If you leave no spouse and no descendants but living relatives within 4 degrees of separation:
Your closest class of living relatives will split your estate equally. For example, if you your parents survive you, your estate will be split equally between your parents. If your parents do not survive you but your siblings survive you, your estate will be split equally between your siblings. This scheme continues for classes of living relatives of up to four degrees of separation.
(6) If you leave no spouse, descendants or living relatives within 4 degrees of separation.
Your estate will go to the government.
In contrast to the strictly applied rules set out above, a will provides a great deal of flexibility in the distribution of your estate. For example, under your will you may give specific gifts to specific people, create trusts for your minor and/or disabled descendants, and distribute the remainder of your estate to any people in any proportion that you wish. Further, so long as you are 16 years of age or older and have the mental capacity of doing so, you may make or amend your will whenever you want. For example, you may wish to update your will as a result of the birth or death of a person close to you, commencement or termination of a marriage-like relationship (including a common law relationship), acquisition or disposition of assets (including real estate and gifts), relocation outside of British Columbia, undertaking of any liabilities, or changes in tax, wills or estates laws.
Please let us know if you have any questions regarding the above or your estate planning needs. We would be happy to discuss how your estate would pass under the intestacy rules or under your current will, if any.
Author: Danielle (Dani) Brito
This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (250)448-2637 or any of our lawyers practicing in the area of estate planning and estate administration at the following:
Jennette Vopicka: firstname.lastname@example.org
Danielle (Dani) Brito: email@example.com