Make A Will Week is October 4-10, 2020 in British Columbia. According to a report for BC Notaries, only 55% of British Columbians have a signed, legally-valid, and up to date will. Unsurprisingly, one of the top reasons people do not have their estate planning documents is procrastination. Make a Will Week is a great extra push to quit putting off making a will until “later”.
The good news is, now that you’ve acknowledged you need a will, you’ve already taken the first important step towards having a solid estate plan in place. In this article, we are breaking down the basics of making a will and the different types of ways you can make a will in B.C.
What is a Will?
Your Last Will and Testament is a legal document that outlines how you wish to distribute your assets such as property, money, or care of minor children after you die. Your will is also where you name your executor who will be in charge of settling your affairs on your behalf.
In Canada, there are several ways to create a legally-valid will:
DIY will kits:
A DIY will kit is a printed fill-in-the-blank document that allows you to fill in the key information about your estate—who you are, who your executor would be, who your beneficiaries would be, and who would be a guardian for your minor child. Think of will kits like Mad Libs for estate planning—you fill in the blanks with your information, and once signed and witnessed correctly, you have a valid will.
A DIY will kit may be a good choice if:
- You have a very simple estate that does not require any custom or specific requests
- You want to spend less than $50 on creating your will
- You are not comfortable using online tools
When to avoid:
The biggest downside of DIY will kits is that they are designed to be one-size-fits-all. Every person buying a will kit has a unique life situation, but the will kit treats everyone the same. This may be fine for some people with very simple wishes, but it largely doesn’t take into account any complexities, extra wishes, or funeral planning requests.
It can also lead to the wrong people witnessing your will, since there are rules around who can sign your will to ensure it is valid. If you’re someone who wants to be able to make updates, a DIY will kit will also require that you purchase a new kit every time your life situation changes.
An online will platform combines the convenience of a will kit with a degree of the customization you would expect from an estate lawyer. A great example is Willful – they don’t provide a fill-in-the-blank form, rather it’s a platform that uses logic to assess your life situation, guiding you through a series of questions and creating a customized document for you.
Online will platforms are a good choice if:
- You don’t have a complex estate
- You’re single/married/common law, have assets (property, investments), have children and/or pets; and live in our active provinces
- You want to be able to make changes at any time in the future (Many online wills, like Willful, offer free updates to your will!)
- You want to spend less than $250 on your will
- You don’t need legal advice
- You want a will that has up-to-date legal content (Willful’s content is created in partnership with estate lawyers in each province, and those legal advisors ensure the content up-to-date)
- You prefer to use online tools.
Keep in mind you still have to print & sign your will in wet ink for your will to be legally-valid. However, digital storage and signatures of wills are coming to British Columbia soon! Bill 21 received Royal Assent in August and is expected to come into effect in late 2020 or early 2021. The bill will allow for electronic signing, digital storage, virtual witnessing, and digital revocation of wills. Willful is keeping B.C. residents up to date on Bill 21 here.
When to avoid:
Online wills are ideal for many people, but they don’t cater to people with complex estates who need a variety of very custom clauses, and they also aren’t a fit for anyone who wants to sit down and talk to a lawyer about their situation. If you think your situation might be complex, reach out to us anytime and we can clarify whether Willful is the right fit for you.
Creating your will with an estate lawyer is the most expensive, but also the most comprehensive option. Estate lawyers are trained in estate law, and can handle any complex estate in addition to providing advice on any aspect of your situation. They’re also usually well-versed in estate taxes, so can advise you on how to minimize your estate taxes.
Visiting an estate lawyer is ideal if:
- You have a complex estate – a child with a disability, you’re separated but not divorced, you want to disinherit someone, you have a business and need a dual will, or if you just want lots of custom clauses or wishes, such as gifts with a requirement that has to be satisfied or fulfilled before the beneficiary will be entitled to receive the gift
- You have the budget to pay a lawyer
- You need legal advice – you have questions about your estate plan and only a lawyer can answer
- You want advice on minimizing the taxes that will be owed by your estate
- You want a lawyer to create the will so they can handle the probate process as well (moving the will through the court system after you pass away)
When to avoid:
The biggest barriers to people visiting an estate lawyer are cost and convenience. It’s expensive to get a will from an estate lawyer, and you often have to make an appointment during work hours (which became even more difficult with the COVID-19 pandemic, where in-person appointments weren’t possible). Lawyers are often working from their own templates for estate plans—they’re not creating each one from scratch—so if you have a simple estate, it may not be necessary to visit a lawyer. A lawyer-drafted will may also mean paying hundreds of dollars every time you have to make an update to your will. Many Canadians typically go through 3-5 life changes (birth of a child, marriage, divorce) that will require updates to your will. These costs can add up over time.
What makes your will legally-valid?
It’s important to understand that what makes a will legally-valid has nothing to do with whether it was created using a lawyer or with one of the other options. What makes a will legally-valid in B.C.:
- It must be in writing as a physical copy (you currently cannot store a will online)
- In B.C., you must be at least 16 years of age. If you’re under the required age, there are specific circumstances that allow you to make a legal will, like if you’re married, have children, or are a member of the armed forces.
- If the will is typed, you must sign your will with two valid witnesses present and they must sign to confirm they have witnessed your signature. (Your witnesses cannot be a named executor or their spouse and cannot be a named beneficiary or their spouse. If a witness is a beneficiary, the gift made to that person might not be considered valid. The best practice is to find witnesses who do not benefit from your will.)
- The signatures must be at the very end of the will.
There are many fantastic options for you to make a will, but the key takeaway here should be that the worst type of will is no will at all. If you die without a will (what the courts call “intestate”), the courts will make decisions based on province-specific formulas and regulations on who gets your assets and who will care for any minor children. Regardless what method you choose to make your will, just remember to make sure it’s a fit for your unique life situation.