LAST WILL & TESTAMENT
This booklet explains how a Will can help you to look after your dependents & distribute your assets when
you are gone. It describes some common examples and some suggestions and things to consider.
You should not rely on this booklet for legal advice. It provides general information only. Consult
a licensed lawyer or notary in your jurisdiction before drafting your Will.
What is a Will?
A Will is a legal document drafted by an individual prior to death and while still of sound mind, to instruct a
person, persons or company to dispose of and manage the assets of the individual after death. That
person is known at the Executor or in the female gender Executrix. The person writing the Will is called
the “Testator” or “Testatrix”
There are numerous forms a Will can take, from simple to complex depending on the assets of the
deceased at death and the age of any dependents.
EXAMPLE: Sam, a business owner has built a very successful plumbing business. He has a staff of 10
people and is the sole owner of the business. On Sam’s death the company would have to be “wound
up”. This would mean everyone loses their jobs and the company “assets” are sold off into liquidation. A
Well drafted Will however, could appoint an Executor, to continue operating the business in trust for his
beneficiaries indefinitely or until a suitable buyer for the business could be located. Sam may have for
example a son who is still a minor but who fully intends to take over the business one day. Without a Will
appointing the Executor to manage the business until the child is of age, all would be lost.
EXAMPLE: James and his wife Susan are well into their retirement years. In order to avoid double
probate costs, James decides that he will leave the house in trust for his children, allowing Susan to live
there the rest of her days, but prohibiting her from selling it or mortgaging it. This is known as a “Trust
condition” and needs be carefully thought through as to the ramifications prior to drafting the Will.
LAWYERS ARE NOT ESTATE PLANNERS
One of the greatest mistakes people make when going to a lawyer to have their Will drafted is the
assumption the lawyer will tell them what to put in the Will or how to distribute the estate. Lawyers simply
draft the Will in legally binding language to achieve WHAT YOU WANT. They will ask you to tell them
HOW you want your Will to read. They may answer specific questions regarding legalities about Wills but
that is the extent of their “advice”. This is because part of estate planning involves taxation which is
outside of the expertise of most lawyers – excepting tax lawyers.
MOST LAWYERS ARE NOT EXPERTS ON WILLS
As with many aspects of law, it has become necessary for lawyers to specialize – i.e. contract law,
criminal law, matrimonial law, tax law etc.
Although most general law practitioners draft Wills, the truth is that they simply use a “boiler plate” form
but do not pay attention to case law regarding court cases contesting Wills and therefore often not aware
of certain language that could be critical.
FOR EXAMPLE: Henry is a farmer and in his Will he leaves the farm to his son Rob who is newly
married. The wording he uses in his Will is “ I leave all my farm land and farm equipment to my son Rob.”
Henry dies and Rob inherits the farm as stated in the Will. But his marriage at this stage is not doing well.
Shortly after Rob inherits the farm, his wife files for divorce and sues for half the farm.
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Ordinarily, assets received by inheritance belong to the beneficiary, but because the language in the Will
was not specific enough, Rob’s wife claims that Henry intended it for them both since they were married
at the time. Obviously Henry is dead and cannot be asked what his intention was, so by default Rob’s
“soon to be ex-wife”, is awarded half the farm and because he would have not enough left to make a
living, Rob loses everything.
However, had the Will stated one extra little phrase, “… for his own use absolutely and forever”, it would
clearly indicate that it was ONLY FOR ROB and his wife would have had no legal claim.
The Executor’s responsibilities
At death all assets of the deceased are transferred into “The Estate” and the Executor/Executrix, is
appointed to liquidate and distribute the assets according to directions given in the Will.
Below is a list of duties required by the Executor/Executrix:
1. Notify family, friends and employers or employees of the death.
2. Make funeral arrangements
3. Locate and authenticate the last Will and Testament of the deceased. In order to authenticate the
Will, the Executor has to locate the witnesses who witnessed the Will and obtain an affidavit from
them that the Will was indeed executed by the deceased in their presence and to their knowledge
as the last Will and Testament signed by the deceased. You also have to do a Will search to
prove there are no other Wills registered anywhere - http://www.vs.gov.bc.ca/forms/vsa532.pdf
4. Obtain several certified copies of the death certificate – many banks and other organizations will
not accept photocopies.
5. Make several certified copies of the Will – some companies will require this for their records.
6. Open a bank account in the name of the Estate into which funds are deposited as assets are
liquidated for final distribution to the heirs. This is required even if the Executor is a surviving
7. Obtain full contact information for beneficiaries – address, phone email and birthdates. Notify
them of the provisions in the Will and provide them with a copy of the Will.
8. Prepare a list of assets and liabilities of the deceased. Where valuations are necessary – for
example real estate, get 2-3 appraisals. The court does not require proof of valuations in most
cases unless a valuation appears inordinately low – like vehicles or furniture. Use good judgment
in placing a value on such items.
9. Since assets pass from the deceased to his or her estate, new insurance must be obtained during
the period of completing the estate requirements and distribution and previous insurance policies
cancelled. This includes auto insurance, fire insurance and content insurance where the
deceased was the sole owner of the property at death.
10. Keep detailed records of everything you do as Executor – expenses and receipts etc. Every
financial transaction should flow through this account.
11. File Probate – at the local court house. Probate is a tax on assets of the Estate and therefore
requires a statement of assets and liabilities of the deceased at death. All assets fixed and
financial must be listed, including shares in any companies with a valuation of their worth. The
statement of assets must be sworn before a Notary prior to filing. A copy of the Will must be
provided along with this documentation proving the right of the Executor to file probate. In order to
proceed as Executor, the probate court must grant a certificate of probate which usually takes
about 5 days after paying the probate fee - currently in BC it is $14 per thousand of estate value.
12. Do a land titles search to ascertain if there are any liens or mortgages registered against the
deceased’s real estate holdings. You can do this at the land titles office.
13. File life insurance claims and liquidate RRSP’s or other investments. NOTE: If RRSP’s had a
named beneficiary this will not be necessary.
14. Notify employer(s) and obtain final wages due.
15. Compile a list of creditors and cancel all credit cards. Publish a notice in the local newspaper for
any creditors of the deceased to prove amounts claimed.
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16. Notify creditors and pay outstanding debts of the deceased.
17. Notify government agencies and re-direct mail. Cancel subscriptions (magazines, hydro, cell
phone, cable television etc. that was solely in the name of the deceased, and automatic
withdrawals from their bank account.
18. File claim for CPP death benefits.
19. Transfer ownership of vehicles, cancel interim insurance etc.
20. File a personal tax return for the deceased for the year of his/her death by the later of six (6)
months following the date of death or April 30 of the following year. If the deceased has not filed
prior year’s tax returns they must also be done.
21. File an estate tax return & final tax return for the deceased and obtain a clearance certificate.
22. Distribute the estate to the named beneficiaries – obtain a receipt from beneficiaries certifying
they received their respective inheritances. NOTE: Avoid distribution of the estate until after all
legal requirements and a tax clearance certificate is obtained. If you distribute assets prior and
there turns out to be a large tax amount due, if there is no money left in the estate because you
distributed it, you could personally become liable for the tax.
NOTE: Where assets of the deceased are comprised of business assets or shares, an active farm or
royalties, it would be prudent to utilize the advice of an accountant before filing probate, otherwise tax
issue may arise that could be devastating to the estate and beneficiaries.
NOTE: It is not required to have a lawyer handle the filing of probate. The executor who is competent
may finalize the estate without the need of a lawyer. However, if the executor is unsure it would be
prudent to seek advice from a competent lawyer regarding estate matters.
Naming an executor
You can choose anybody as your executor, so long as they are 19 years or older and able to understand
the responsibilities involved. Most people choose their husband, wife, friend or other family member. In
some cases people appoint a Trust Company or professional such as their accountant. You can appoint
more than one person. If you do, you must write in the document whether they will act together or
(For instance, do both of them have to sign any papers, or can either one sign?) If you name only one
executor, it is very important to name an alternate who will take over if something happens to your
Your executor could have a difficult time with some beneficiaries, so choose somebody you trust, and
who is comfortable with financial matters. Take the time to talk with that person about what you want and
would expect them to do. Ask if he or she is willing to be your executor.
If you choose a Trust company as your executor, ask how much they will charge you. Without a Will a
public Trustee is appointed automatically leaving your spouse and children subject to them.
If your Executor is out of Province & depending on what assets are in your estate they may be required to
post a bond in order to act as Executor, so where possible try to appoint an Executor residing in British
Where to keep your Will.
A common mistake is to place your Will in a safety deposit box. When you die the Will is needed for the
Executor to administer and not having access to your safety deposit box makes that almost impossible.
If you store it in your home make sure it is in a fireproof safe so as to avoid loss in case of a fire, and let
your Executor know where you have located the Will so that he/she can retrieve it when needed without
an entire house search.
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What happens when an accident takes both my life & my spouse’s?
Recent amendments to Estate laws in British Columbia state the following;
Where it cannot be determined who died first, one half of the estate of each of the deceased passes to
the other’s estate, thus establishing an equal estate value for both. This rule applies where it cannot be
determined who died first or where one dies within 5 days of the other. IN the case one survives more
than five days, then the first deceased’s estate passes to the survivor. This cause a double probate
expense and can be avoided through a well drafted Will.
It is therefore wise to add a clause in your Will that states that the other person must survive you by more
than 30 days in order to receive anything from your estate otherwise it goes to the next level of
beneficiaries named in your Will.
What about appointing Guardians for minor children?
This aspect is often taken too lightly when drafting a Will because usually all parties are still young and
the assumption is that it will likely never happen so… why not?
If you have minor children your selection of a Guardian ought to be someone you absolutely trust your
children to, who have the same core values and perhaps religious views as yourself. Also take into
account the age of your proposed Guardians. Appointing an elderly parent is not a good choice unless
there is no other alternative. In some cases the courts have overturned the appointment of elderly
guardians and placed the children into foster care because they deem the elderly guardians to be
The biggest single mistake most people make though is they forget to make a financial provision to the
Guardian as compensation. They may need to buy a bigger house, a bigger car and many other things in
order to accommodate the new child/children into their own family. There have been thousands of court
cases through the years where the children have grown up and claimed that their Guardian mismanaged
their inheritance and sue them. By specifying a portion of the estate for the sole use of your Guardian as
compensation for taking care of your children, you can save them from any such painful experiences later
If you are or ever become a guardian, be absolutely sure to keep receipts of every penny you spend on
behalf of the children and accurate bank records.
It is wise to have your Guardian and Executor as different people due to conflicts that often arise.
Does my Will need to be Notarized?
No. In order to make a Will valid it must be witnessed by 2 witnesses. They must see you sign the Will
and at the same time both must sign as witnesses.
A witness CANNOT be a beneficiary of anything in the Will otherwise they lose their inheritance but it
does not invalidate the Will. It is important to list the address and contact info. for the beneficiaries so that
the Executor can locate them when it’s time to validate the Will.
NOTE: It is advisable to initial every page of the Will so as to ensure no pages have been modified or
replaced. Believe it or not, this has happened. It is however not required by law.
Can I write my own Will?
Yes. Provided the Will is entirely in your own handwriting or else all typewritten and signed properly by
witnesses it is valid. There are some exceptions such as people in the military on assignment who can
write a Will without the need for a witness and it will be valid. Many people however have neither the
knowledge nor skill to draft a Will to ensure it accomplishes their wishes, so it’s usually better to have a
professional draft it for you.
In British Columbia an individual can draft a Will at the age of nineteen unless married or in the military
wherein a Will can be drafted as young as age 16.
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How do I change an out of date Will?
Your Will should be reviewed once a year to ensure no major changes have occurred in your family or
personal life. Executors may move away, marriages may end in divorce; children grow up, assets change
etc. If you are single and have a Will it automatically becomes void on marriage unless the Will
specifically states that it was drafted in contemplation of marriage with a wedding date etc.
Often a lawyer will simply write up an additional page of amendments to your existing Will called a
“Codicil”. It may however be worth re-writing your Will entirely. Either way, the first paragraph of a new
Will or Codicil must revoke all previous Wills or a specific clause in a specific Will.
What happens if I die without a Will?
Every Province in Canada has its own legislation regarding the distribution of estates. Recent
amendments in British Columbia have changed significantly the distribution of assets. On death the
government appoints the public trustee to act as executor of the estate.
Previously the law stated that the first $65,000 went to the surviving spouse as well as the martial home.
This has now changed as follows;
The first $300,000 of estate value goes to the spouse and there is no longer a vested interest in the
marital home. The balance of the estate is divided 50/50 between the spouse and any minor children
(under 19) of the deceased. If there are children of the deceased from another relationship, then the
surviving spouse only gets the first $150,000 and the balance is divided 50/50 between the spouse and
A common law spouse is treated the same as a married one if they have lived together for at least two
years and includes same sex couples.
Where there are no surviving parents (for example if the deceased was a single parent), the child(ren) will
be taken into protective custody and placed into a foster home until such time as either a family member
gets granted the right to adopt the child(ren) or else a third party applies to adopt the child(ren).
Once a public trustee has been appointment they are immune from any legal proceeding for damages in
performance of their duties because of anything done or omitted.
Did you know…
• There are approximately 745,000 unclaimed balances worth $168 million in the books of the Bank
• That over the next decade it is estimated that approximately $700 Billion from Canadians' estates
will be distributed according to provincial laws because people did not have Wills or the original
Wills can't be located.
What happens to minor children if I die without a Will?
As a general rule minor children are put into foster care and are often separated, unless there is a
A family member may apply to the court for custody but this is not a guarantee. If the court feels that the
family member is too old, or not financially capable to provide for the child or children adequately, they will
be denied the application.
What happens in a blended family?
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Sometimes couples remarry, each having children from a previous marriage. If the children consider, refer
to or relate to the new parent as their parent, then you CANNOT disinherit them. Some couples try to
leave just their personal share of their estate to their children. This is where court cases arise and Wills
are usually overturned. You simply cannot disinherit your spouse or a dependent child or step child,
whether they live with you or not. You can however, disinherit an adult child, but NEVER your common
law or married spouse.
Do I have to pay my Executor?
If it is a family member this may not be necessary. However, your Executor may have out of pocket
expenses that should be reimbursed from the Estate – for example, travel, time off work to file probate
You may however wish to remunerate them for their time and trouble if the person is not an immediate
Can an Executor refuse to act?
Yes. If your Executor chooses not to act, and there is no alternative Executor mentioned in your Will, then
the Public Trustee will take over the duty of distributing the Estate.
I made a Will in another Province. Is it still good?
Each province in Canada has its own laws and procedures for Wills. This booklet applies to residents of
BC who have finances and property in BC. For information about Wills in another province or country,
consult a legal professional.
If I have property in another province or country, will my BC drafted Will apply?
Possibly. However, the safest approach is to check with a lawyer in that province or country – before you
draft your Will.
How much does it cost to get a Will done?
Rates do vary but in British Columbia the rates charged usually vary between $500 and $1000 per
person. This has caused many people to take chances in drafting a Stationery store Will often with
An alternative option:
Pre-Paid Legal Care of Canada is a membership based legal benefits provider. Members can get their
Wills drafted free of charge by one of the Provinces top legal firms and reviewed or changed once per
year free of charge. Membership starts at as little as $26 per month and includes many more legal
services such as free Power of Attorney, contract reviews, letters and phone calls on your behalf,
unlimited legal consultations and a wide array of discounted services. For details speak with a PPL
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