People often think that if they do not have a lot of assets, they do not need to make a Will or have an estate plan in place. In fact, nothing could be further from the truth. Having a legal document in place that directs where your assets go and who will take care of your children in the event of your death could save a lot of time, trouble and cost down the road for loved ones.

What Is An Estate Plan?

An estate plan may include such documents like a Will, trust, Representation Agreement (also known as a living will) and Powers of Attorney. These documents direct how your assets and liabilities are to be handled after your death. Even if you have a modest home and few assets, you should still have a Will and estate plan in place. A good wills and estates lawyer will review your circumstances and draft the appropriate documents for your own personal situation.

What Happens If You Die Without a Will?

Should you die without a Will (which is also known as dying “intestate”) – or even if you have a Will in place but it is deemed to be “invalid” because it does not meet the legal requirements of the courts – several actions could be taken, depending on your circumstances.

• If you die intestate, then your possessions (estate) will be distributed according to the Wills, Estates & Succession Act (WESA) of BC. Under this Act, default provisions exist which outline how your estate is distributed, which means you will have no say in who gets what or who acts as your executor. Having no Will in place also increases the chance of uncertainty, which then leads to possible disputes as indicated below.
• If you die intestate or have a Will but it is not recognized as being legally valid, there is an increased risk that certain relatives can challenge (“contest”) your will. To lessen the chance of someone contesting your estate, it is better to have a Will and/or estate plan that spells out exactly how you want your assets to be distributed, which could include why you have chosen to disinherit certain relatives.

What If You Have Children?

If you have minor children and/or are legal guardian for a disabled adult – and do not have a will to provide for them – they may fall under the purview of the Public Guardian Trustee (PGT), a corporation established under the Public Guardian & Trustee Act.

The PGT protects the financial and legal interests of children under the age of 19 and disabled children/adults that you are caring for. It may also administer the estates of people who are deemed to be missing by the courts. Failure to name a guardian through your will could result in a temporary period where your minor children or disabled adults are taken into the care and custody of the PGT until they can sort out who is the best person to care for them.

Why You Should Hire A Lawyer To Handle Your Estate

Probate is a court process that verifies a will; it determines that it is valid and verifies the appointment of your named Executor(s). Depending on various factors such as the simplicity of the estate, the character value of the assets and the number of dependents, your Will may not have to be probated.  Most estates, though whether by choice or circumstance, end up being probated.

Probate does incur additional costs for your estate and may add additional time to distribution, but there are also valid legal reasons why one would want to have a Will probated. In BC, a time period for commencing an action to vary a Will under WESA does not start unless and until the issuance of probate has occurred.  Third parties, such as government agencies and banks or credit unions, may also refuse to recognize an executor’s authority until a grant of probate has been issued.

Probating a Will should include the professional services of a wills and estates lawyer as they are familiar with the process as well as all the documentation that is required.

If you do not have a Will or estate plan in place and are considering one, contact RDM Lawyers today. If you have been named the administrator or executor of a Will that may require probate, we encourage you to contact our office to help you through the probate process.