Drafting a Will: The Basics

Before worrying about all the technicalities of writing a valid will, it’s important that testators understand the basics of what they must include in their will. In this blog, we hope to encourage testators to begin thinking about how they want to address their assets which will be included in their will before starting to draft the will. Will-making goes well beyond simply distributing assets to different loved ones and testators should understand this. Some of the most important tasks of a will-maker include: appointing an executor, appointing a legal guardian, choosing beneficiaries and choosing how to distribute the estate.

Appoint an Executor

Your will’s executor will be the person who handles your estate and is responsible for its administration of your estate after you pass away. Some of the tasks an executor is responsible with include paying any outstanding debts, selling estate assets, and distributing the estate to the named beneficiaries.

Depending on the size and complexity of your estate, the job of the executor can be extensive. We recommend that you choose an executor who you can trust and is willing and able to complete the job. Executors have a lot of power in the administration of your estate and may try to abuse this if they are not trustworthy. The executor can be a beneficiary in the will. Sometimes, people will name all their children as joint executors of their will. This way, each child has a say in what happens and it helps to reduce the burden on one person. Having multiple executors can reduce the risk of fraudulent behaviour as each executor will have to approve of the decisions made on behalf of the estate, although it may give rise to other problems in the administration process should the joint-executors disagree on certain issues.

Appoint a Guardian

If you have children under the age of 19, it’s important to appoint someone who will be the legal guardian of your children if they’re still a minor at the time you write your will. In the event that both of the child’s parents pass away, a guardian is someone who will be the caretaker for your minor children. If a guardian is not named in the will, the family courts will have to choose someone. To have full control, it’s always best to include an appointed guardian in your will.

In choosing a guardian, it’s best to speak with family members to see who is able to and would be the best fit for your children. Depending on the age of your children, it can be a huge responsibility to undertake guardianship and the appointed guardian must be willing. Typically, an appointed guardian in a will is one of the testator’s siblings or another close family member.

Pick Beneficiaries

Beneficiaries are the people who you are going to give gifts from your estate to. Beneficiaries in a valid will can be anyone; inheritance is not limited only to family members of the deceased. People can also select charities and organizations as beneficiaries in their will. While testators have full control to choose how they wish to distribute their estate, spouses and children cannot be unfairly disinherited in BC. Testators must make adequate provisions for the proper maintenance and support of their spouse and all their children in their will. In some cases, parents can have valid reasons for disinheriting a child which will allow the testator to override this provision.

Everyone is in a different situation, and there is not any general advice to give on who should be named as a beneficiary. Some testators choose to only name their children and spouse as beneficiaries, while some testators name all of their close friends, favourite charities and family members as beneficiaries. It’s up to you as the testator to decide this on your own, without being unduly influenced by anyone.

Distribute the Estate

Once you know who you want to give your estate to, you must decide how much of and what to give each beneficiary. You can also decide how you want the estate assets distributed (i.e. to distribute your physical assets as they are, or sell them for cash and distribute the funds). When choosing to give a large asset such as a house to someone, it can bring along many responsibilities and expenses for the beneficiary. It can be a good idea to work with the beneficiary and understand their position on receiving the gift. In some cases, it can be easiest to sell all the estate assets and give each beneficiary a specific percentage of the estate residue. This isn’t always the case as families traditionally have heirlooms and assets that they want to pass down for generations to come. In the end, it’s ultimately at the discretion of the testator how they choose to distribute their estate.

The Formalities of a Valid Will

By law, you do not need a lawyer to help draft your will – you can make a valid will on your own in BC. However, we strongly recommend testators get advice from an experienced will-drafting lawyer. There are various different formalities to consider when writing a valid will. In addition, there are many different tips and tricks to reduce any risks of confusion when people are reading your will. As an example, the wording in a simple provision can have various different legal meanings which can interfere with the administration of the estate in the way which you intended.

When a testator is giving a gift to “their children,” it may seem obvious nd clear who is to receive the gift. However, does “their children” only include birth children? This could include their stepchildren as well. This is only one of hundreds of different mistakes and misunderstandings that can arise from a poorly drafted will.

Even though there are many do-it-yourself kits for wills online, we encourage everyone to at least hear the advice of an estate lawyer before finalizing their will. Fixing any discrepancies or ambiguities before it’s too late can save your estate and your family significant amounts of time and money in legal fees. If you need help drafting your will, contact an experienced estate lawyer today. We can ensure that your will is written properly and won’t cause any problems for your loved ones after you have passed away.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.