What does a will do?
A will provides for the management and distribution of your property upon your death. Through your will, you can appoint an executor to manage your estate, which includes payment of your debts and distribution of your property, and you can provide specific instructions as to how you want this to happen. This can include terms stating what age beneficiaries must reach before receiving their inheritance.
Wills are becoming increasingly important to meet the needs of “blended families,” where spouses have children from prior relationships. In these families, traditional wills that leave everything to the surviving spouse, with the intention that that spouse will pass the assets down to their children, may not meet the needs of the family. An estate planning lawyer can suggest different structures and terms that can meet your specific needs.
When a person dies without a will, their assets are distributed in accordance with the Wills, Estates and Succession Act. The treatment of spouses will differ depending on whether the children of the deceased, if any, are also the children of the spouse. Minor beneficiaries will receive their share when the reach the age of majority, which is 19 years old in British Columbia.
This can create several problems, including situations where spouses receive far less than what they need to be self-supporting. It can also create situations where a child receives an inheritance at an earlier age than you may wish, or where a dependant adult child may receive a significant sum of money that will interfere with assistance payments.
Another important reason for making a will is to set out provisions for guardianship of minor children. A properly drafted will can provide legally binding instructions for guardianship and care of your minor children in the event that you are the last guardian to pass away.
What does a will NOT do?
While a will allows you to provide direction for the management and distribution of your estate, there are limitations with on your freedom to distribute your assets. If your child or spouse applies to vary the will on the grounds that the will does not make adequate, just and fair provisions for them, the Court may use their discretionary power to vary the terms to provide for or treat that child or spouse equally.
If you wish to treat your children unequally, or to exclude a child as a beneficiary, you may not be able to achieve this by a will alone. An estate planning lawyer can provide you with additional options for asset distribution.
Wills only come into effect after a person dies. As such, they do not give anyone the authority to make legal, financial, or heath care decisions on your behalf during your lifetime. Other documents, including a Power of Attorney, Representation Agreement, and Advance Directive, meet these objectives.