Key Parts of a Will

Wills & Estate Lawyers
Key Parts of a Will

Key Parts of a Will

Wills & Estate Lawyers

Executors

One of the most crucial decisions you can make in your will is appointing your executor. The executor:

  • oversees your estate after your death
  • ensures the wishes set out in your will are followed
  • is responsible for your funeral arrangements
  • safeguards your assets
  • administers any trusts you set up under your will.

An executor has a great deal of responsibility and requires good organizational skills. Your executor will become the legal owner of all your assets when you die and s/he is responsible for passing these assets on to your beneficiaries. Since your executor will make crucial decisions, it is important that you choose an individual who has good judgment, sound business sense and can relate well to your family members. It is prudent to choose an alternative executor in the event that your first executor is not able to do the task due to illness, incompetence or death. Failure to appoint an alternative executor can result in unnecessary costs and delays in the handling of your estate.

While you can appoint more than one person to act as your executor, you need to ensure that both executors can work together as all decisions must be by consensus. Both executors’ signatures will be required on numerous documents, so be aware that appointing executors in different locations could cause delays.

Guardians

If you have minor children under the age of 19 you will need to appoint guardians who will have the legal right to make decisions and sign documents on your children’s behalf. A guardian makes decisions relevant to your children’s health care and decisions regarding their care, upbringing and education. In the event that you cannot parent your child(ren), your guardian(s) assume that responsibility. Consider potential guardian(s) for your children carefully and confer with them before naming them to this position, to ensure they are prepared to accept this responsibility. It is advisable to appoint alternate guardians in case the persons you have appointed are unable to do the job.

If you fail to appoint guardians then the Public Trustee and Ministry for Children and Families become the guardians.

Gift Provisions

Your will outlines who receives your assets and when they will receive it after your death. If you have children, consider creating trust provisions where your executor will hold assets in trust for your children until they reach majority or an age when you think they will be responsible. Prior to your children reaching a stipulated age your executor (or another person named as trustee) can use the money to pay for that child’s education, upbringing, health care and expenses. When your child comes of age s/he will receive the money being held in trust.

A trust is created when someone holds property for the use, benefit and enjoyment of another person. The person holding the property is known as the “trustee” and the person receiving the benefit of that property is known as the “beneficiary”.

You may also wish to give certain money to charities or other organizations such as the B.C. Heart and Stroke Foundation, your church, or other similar organizations.

In deciding who is to receive your assets consider the possibility that your chosen beneficiary may die before you. If that were to occur, specify in your will who will then receive those assets. The Wills, Estates and Succession Act of B.C. has a number of rules that may apply when a beneficiary predeceases you if you don’t specify this in your Will.

If you have beneficiaries who are receiving certain disability benefits or other Government Pension, consider making provisions to ensure your gift to that beneficiary does not result in them losing any of those benefits. For example, giving a lump sum to a mentally disabled adult may result in that person losing their government benefits. It is often advisable to instead set up a discretionary trust for that individual so they can receive their regular monthly pensions from the Government and have your estate top up their benefit as required.

If some of your beneficiaries are under 19, ensure that trust provisions are in place, otherwise that child’s gift will need to be paid to the Public Trustee. The Public Trustee will then hold that gift until that minor beneficiary turns 19.

Personal Property and Household Items

To make specific gifts of personal property such as household furnishings or family heirlooms, you create a signed memorandum that is filed with the will and can only be changed by updating your will. Another, more flexible option is to provide a ‘wish list’ to your executor, and they can use this to divide your household items. The more valuable the item, the greater the likelihood that a gift will cause contention among your family members.

Administrative Provisions

The administrative provisions of your will outline what your executor can and cannot do with your assets. They include items such as:

  • the power to sell or delay the sale of your assets
  • the investment powers of trustees
  • how your executor can claim compensation
  • decision making on your final income tax returns
  • distribution of your physical assets (eg. household items, personal effects etc.)
  • receipts from non-profit organizations

If you own a company, your will can also how your executor should handle corporate decisions and what actions should be taken before your company is sold or passed onto your beneficiaries.

Funeral Wishes

Your will can specify your funeral wishes (such as cremation or burial) and your wishes pertaining to a ceremony. While these specifications are binding on your executor, it’s still advisable to inform both your family and your executor in advance about your funeral wishes. Sometimes the will is not closely examined until after a funeral.

It is often helpful to make arrangements for your funeral prior to your death, a foresight that’s potentially financially advantageous and eases the burden on your loved ones . Even if you prefer not to purchase a pre-paid funeral plan, do some research and leave instructions for your executor about your choice of a funeral home.