Our Lawyers Answer Your Most Frequently Asked Questions About Wills | Bell Alliance FAQ Part 2

Thinking about preparing your Will, or starting a conversation with someone you love about Wills can feel overwhelming, awkward, or even painful. It can be difficult to know how to talk about Wills, and it usually makes us feel uncomfortable to think about losing people we love.

At Bell Alliance, we’ve decided to try and take the sting out of this tricky topic by asking our Wills and Estate Planning lawyers to answer some of your most frequently asked questions.

In part two of our 2-part blog series, our goal is to help you feel more confident and equipped to consider planning your own Will and to feel more comfortable talking about Wills with the people you care about.

What happens to my children if I don’t have a Will?  

If you die without a will leaving a child under the age of 19, and the other parent isn’t alive, then an application needs to be made to the court to appoint a guardian. This is both a long and expensive process.

In other words, by not having a Will, you forfeit the right to appoint a guardian for your child(ren).

During this application process, the court takes into consideration the best interest of the child and in most cases, depending on the age of the child, they value the opinion of the child in determining who can take care of them.

Without a Will, the Public Guardian and Trustee (PGT) becomes the trustee and holds the child’s shares of the estate in trust for them until they’re 19 years old. The child’s parent or appointed guardian would have to apply to the PGT for any money required such as living or education expenses. When the child turns 19, they can then take control of their money and any additional assets.

“By contrast, if you have a will, you appoint the executor and trustee for the share going to a child under 19, and you can direct that the share be used for the child’s benefit, including support and higher education, without government involvement.” – The Canadian Bar Association, British Columbia

If someone passes away and bequeaths property to us, do we have to accept? What if we can’t afford to pay taxes when we inherit the property?

If someone leaves you property as a gift, you do not have to accept the property. If you don’t wish to receive it, then the gift fails and it is distributed elsewhere as per the Will.

There are 4 taxes to be aware of:

• property transfer tax
• capital gains tax
• income tax
• and probate fees

Most taxes are paid by the estate. However, if there are some taxes payable by you as the beneficiary of the property, the Executor can sell the property and distribute the value to you instead.

What happens to my spouse or partner if I’ve bought a home but don’t have a Will? Are there insurance policies that would protect my partner?

If you are registered as joint tenants on the property (you both own the property equally), the property will automatically pass to your surviving spouse or partner, regardless of whether you have a Will.

If you both die together, or if you are registered as tenants in common (you each own a specific share in the property), the property, or your share in that property, will be distributed as per the rules set by the government called the rules of intestacy. They determine which family member will receive your property and in what order. For example, if you die without a will leaving a spouse and children, the spouse will receive a sum of money, the household furnishings and a right to purchase the spousal home, then the remaining residue is split so that the spouse receives half and the children receive half. It is important to note that if both property owners have passed away and are registered as tenants in common, the court process of probate is triggered for both parties to be able to remove their names from title or sell the property

You can also take out a life insurance policy and name your spouse or partner as the beneficiary. The proceeds of this may enable the surviving party to pay off any mortgages or loans and facilitate their ability to remain living at the spousal home if desired.

What happens if I appoint a lawyer or professional as my executor? What happens if they leave or quit the company?

Appointing a lawyer or professional as your executor can help alleviate stress and complications for your loved ones. The role of executor is an important and involved job and can be especially difficult during a time when your loved ones are grieving. It involves a lot of paperwork and is very time-consuming.

Bell Alliance often acts as the executor. We appoint an individual of the firm, designated at that time, so there is always protection if the lawyer who drafted the will has left the firm. At Bell Alliance, we work as a team to administer estates to keep your costs down and to ensure that a high level of service is maintained throughout the process. We also work with a team of professional advisors such as accountants and financial planners who can provide us with information

Closing thoughts.

Preparing your Will properly can not only significantly reduce the emotional stress on your family, it also minimizes the financial pressure your loved ones could endure during an already difficult time of loss.

We understand that it can feel awkward, difficult, and even overwhelming to plan your Will or talk about Wills with the people you love, but we also know that the benefits of being prepared far outweigh those types of emotional barriers.

If you’re thinking about preparing your Will, we can help. Contact us at Bell Alliance and let’s start this important conversation together.