Wills - Frequently Asked Questions*

The following is general information only and is not intended as legal advice for any specific situation.

Laws vary from place to place. Any reference to the law is specific to and restricted to matters in the Province of British Columbia, Canada, and may not be applicable to situations in other jurisdictions.

What is a Will?

• A Will is a legal document which sets out your directions as to who should receive your estate upon your death.
• A Will exercises the legal freedom to leave your estate to people you choose.
• Without a Will, the law directs who administers your estate and how it is to be divided.

What are the legal requirements for a Will?

• A Will must be in writing.
• A Will must be signed by the Testator (person making the Will) who must be mentally competent and over the age of nineteen (19) years .
• Signing of a Will requires the presence of two witnesses, both of whom must sign the Will in the presence of each other and the Testator.

Who is the Executor?

• An executor is the person appointed by a Will to look after your affairs after death.
• The executor's duties include: arranging a funeral, preservation of property, assembling and selling assets, paying taxes and debts, and distributing your estate as set out in your Will.
• An executor can be any person over the age of nineteen (19) years.
• An executor can be and commonly is a relative or one of the beneficiaries.
• Spouses usually appoint each other as executor of each other's estate.
• The executor should be competent, capable of managing business affairs and someone you trust.
• In a large or complicated estate, consider the appointment of a Trust Company as executor.

Can I create a trust for my minor children in a Will?

• Yes, usually the executor is appointed as trustee to manage estate money to be held for minor children.
• The terms of the trust are spelled out in the Will.
• The trustee pays out income and benefits to look after minor children.
• When the trust ends, the executor (trustee) distributes the remaining estate.

What about Guardianship of minor children?

• The law permits a person by Will to appoint a guardian of minor children.
• One should consider appointing a different person as guardian than the person selected as executor.
• The executor manages the estate funds, and pays them to the guardian for the child's benefit.

What about instructions to the executor?

• The Will directs what is to happen to your Estate.
• The first duties of the executor are to pay your debts, funeral expenses and any taxes.
• The executor then distributes any special gifts of property and pays out cash legacies, if any.
• Lastly, the executor sets up any trusts and distributes the residue of the estate.

What are the powers of an executor?

• The power to administer the estate and carry out duties should be set out in the Will.
• These powers are often set out in standard form in the Will (legal "boilerplate").
• The powers will usually include the ability to preserve assets, deal with real estate, invest estate money and settle claims against your estate.
• Executor powers should be broad and general.

What is the residue of an estate?

• Residue is the legal term used to describe what is left over in an estate, after payment of all taxes, bills, expenses, and distribution of any specific gifts.
• A residue clause is necessary so that absolutely everything in the Estate is properly distributed under the Will.
• Residue usually comprises the largest part of the estate, for example "I leave the rest and residue of my Estate to my(spouse) ..." or "to divide the rest and residue of my Estate equally among my children...".
• Residue can be left to one person or divided into shares or percentages and given to a number of people.

What is meant by "mirror image" or "reciprocal" wills?

• Couples reflect their common intentions for their combined estates.
• They first leave everything to each other.
• On the death of the last to die, each Will contains identical provisions dividing the estate among their children and/or other beneficiaries.
• After the death of one person, the survivor is free to make a new Will.

*See Fine Print 

For more information contact:

James D. Baird
604.647.4140
jbaird@boughton.ca

Scott A. Murtha
604.605.5633
smurtha@boughton.ca

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