When we prepare wills for people with minor children, we recommend that they appoint a guardian or guardians for those children in their wills. The guardian may be somebody different than the executor. A guardian is given legal responsibility for caring for the child in the place of the parents, and is usually a trusted family member or friend who already has a good relationship with the children. You can create a will that contains instructions to your executor to ensure that sufficient income (or capital) from your estate is made available to your children’s guardian to ensure that your children’s needs are met. Guardians are accountable both to the executor of the estate, for the care of the children, and to the Public Guardian and Trustee of British Columbia, with respect to the management of the children’s assets.
No. You can appoint anyone that you choose as executor of your estate. Your executor must be of the age of majority, ideally someone younger than you (or otherwise likely to survive you), and be an individual that you trust to manage your affairs when you are gone. Many people who make a will appoint a member of their family to act as their executor, but many others do not. You may choose to seek out other trusted friends who are prepared to act as executor. Alternately, you may appoint one of our lawyers to carry out this responsibility. There are advantages to appointing someone who is neutral and who has expertise in acting as an executor. The job of an executor is an important one – it is worth taking the time to pick your executor carefully.
There are occasions when a person making a will may wish to exclude a child or a spouse from sharing in their estate. This must be approached with caution and legal advice should be obtained. Generally, the law requires that you give consideration to the circumstances of your dependents and provide for them in your will. If you exclude a dependent, you must have a good reason to do so and you should bear in mind that your child or spouse may make a court application to seek to be included in the distribution of your estate.
There are a number of assets that would normally pass outside of the estate. For example, if your residence is held in joint tenancy with another person, that asset will not be included in your estate, but will go directly to the other person on title. Similarly, if you have an RRSP and you have designated your spouse as the beneficiary, the RRSP will pass to the spouse directly. The same applies to life insurance policies where you have designated a beneficiary.
If you have a will, you are ensuring that your estate is being distributed to the persons that you want to receive your estate, not in accordance with the default rules set out in legislation. You also have the opportunity to name that person or company that you wish to act as executor of your estate – someone that you trust to make sure that your instructions are carried out according to your wishes. If you die without a will, the court appoints a person to act as administrator of your estate. The cost of administering an estate is usually significantly higher when there is no will. There may be added costs for court applications and dealing with disputes between relatives over certain assets. Having a will can help avoid those costs, and ensure more of your estate will go directly to your beneficiaries.
If you die without a will your estate will be administered and distributed in accordance with legislation, which provides a formula for the division of your estate between your spouse and surviving children. If you have no spouse or surviving children, your estate will be distributed among your surviving living relatives, by degrees of relationship. If you die leaving infant children, the Public Guardian and Trustee of British Columbia will be involved with the administration of the portion of your estate that goes to them.
A will is a legal document in which you provide written instructions with respect to the distribution of your property on and after death. A will must be in writing and must be signed by you in the presence of two adult witnesses. The witnesses should not be persons who are named as executors or beneficiaries in the will.
