What are my rights?
You can make a will on your own, or have a lawyer or a notary public help you. There are rules that must be followed, no matter how simple the will. Learn how to prepare a will that’s valid under the law.
During the pandemic
Are you making your will during the current coronavirus pandemic? In preparing your will during coronavirus, we walk you through important things to consider at this time. As well, we provide tips for how to sign and witness a will safely.
What you should know
Requirements of a valid will
The person making a will is referred to as the will-maker. To make a valid will, the will-maker must:
be age 16 or over
be mentally capable of making a will
freely agree with what the will says when they sign it (if it’s proven in court that someone pressured the will-maker to sign, the will won’t be valid)
More on mental capability
You need to be mentally capable of making a will for it to be legal. This means you must be able to:
understand you’re making a will
understand that the will determines what will happen to your property after you die
appreciate the nature and value of all of the property you own, including what will pass through and outside of the will
understand who your next-of-kin are and appreciate that your will should, if possible, adequately provide for your spouse and children and not unfairly exclude them
Your capability can be affected by illness, an accident, or drug treatment.
A will must be in writing, and signed and witnessed
For a will to be valid, it must be in writing. It can be typed or handwritten.
As well, a will must be signed on the last page by the will-maker. The will-maker must sign in front of two witnesses, and the witnesses must sign the will in front of the will-maker. We explain this in more detail below, under step 5 of preparing your will.
(Note that under this law, a court can cure deficiencies — that is, fix problems — where they find sufficient evidence of the deceased’s testamentary intentions.)
When you should prepare a will
You can prepare a will at any time. But it’s especially sensible to do so when you marry or start a family, or if you own or inherited significant assets, like a home. If you want to leave your belongings to the special people in your life, it’s a good idea to have a will.
Try to prepare a will when you’re still in good health
By law, you need to be mentally capable of making a will. If it’s proven that you were not capable, the instructions in that will can’t be followed.
Your will doesn’t deal with everything you own
"My wife died suddenly. She’d always been clear that she wanted to leave all her things to me and the kids. So she left us everything in her will. But most of her wealth was in two investment properties. She held these jointly with her parents because they’d pitched in a bit of money to help her. She had no idea that the hard-earned money she’d put in herself would flow to her parents (not to me and the kids!) when she died. Unfortunately, there wasn’t much left for the will to deal with.”
– Steve, Richmond, BC
A will deals with your estate. Your estate includes all the property and belongings you own on your death, with a few exceptions. One notable exception involves property owned jointly with others. Another involves property that names specific beneficiaries.
Property owned jointly
A will generally only covers property you own exclusively, not property you share. So, for example, property you own in joint tenancy with someone else — such as a home or a joint bank account — generally isn’t inherited through a will. When you die, such shared property usually goes to the surviving joint owner(s). In most cases, this property isn’t included in your estate. It’s said to pass outside the will.
(There are exceptions, such as where someone gives another person a joint interest, and it’s not clear they intended for the property to go to the other person on their death. We have more on this here.)
Two ways to own property jointly
Joint owners can be joint tenants. That means the owners hold an identical, shared interest in the property. Or joint owners can be tenants-in-common, where the owners hold separate, and not necessarily equal, interests.
When someone dies, property they owned as a joint tenant typically passes directly to the other owners. Property they owned as a tenant-in-common doesn’t. It goes into the deceased's estate.
Say you own a family cottage with your siblings. On your death, if you own as a joint tenant, your share passes directly to your siblings. If you own as a tenant-in-common, your share goes into your estate. You can pass it to whomever you want, through your will.
Property with a designated beneficiary
There’s a second category of property that isn’t covered by your will. Your estate doesn’t include property for which you’ve named one or more specific beneficiaries.
Common examples are life insurance policies and registered retirement plans such as RRSPs. You can designate (that is, name) specific beneficiaries to receive proceeds from the policy or plan. This asset won’t be included in your estate. When you die, the policy or plan holder directly transfers the asset, or pays it out, to the people you designated. (An exception is if you name the estate as the beneficiary. In that case, the asset goes into your estate on your death.)
Designating a beneficiary
You can name specific beneficiaries for a life insurance policy or registered retirement plan, either in your will or in the policy or plan itself. What if you change your mind and decide you want a different person to receive the proceeds? Any new designation, either in a will or in the policy or plan, will replace an earlier one.
Who you can leave your estate to
You’re generally free to leave your estate to whomever you want. Many people choose to give their money and things to family members, relatives, charities, or friends.
Be aware, though, that your spouse or child can dispute your will in court if they feel you haven’t adequately provided for them. Spouse includes a common-law spouse. That’s someone you’ve lived with in a marriage-like relationship for at least two years. (A separated spouse can’t dispute your will on the basis of fairness.)
Relatives other than a spouse or a child generally can’t ask the court to rewrite the will simply because it’s unfair. But they may be able to challenge the will for other reasons.
Leaving a spouse or child out of your will
The law expects that you’ll adequately provide for your spouse and children. Many factors go into determining what is adequate, including the needs of everyone involved, the nature of your relationship with them, any assets that pass to them outside the will, and the size of the estate. In any particular situation there may be a number of ways of dividing the assets which might be considered appropriate in the circumstances. Provided you choose an option within the range, courts prefer not to disturb the will.
If you’re considering leaving a spouse or child out of your will, you should seek legal advice. A lawyer can advise on the best approach in your circumstances, which might include preparing a letter explaining how you’ve considered your obligation to your spouse and children to adequately provide for them.
Wishes for funeral services, burial, or cremation
Not all wills cover details relating to the funeral service, burial, or cremation. Some do. You should discuss your preferences with your executor or family. Be aware that any wishes you express about your desired funeral or memorial service won’t be binding on the executor, even if expressed in your will.
If you write your preference for either burial or cremation in your will, that preference is binding on the executor — except if following it would be unreasonable, impracticable, or cause hardship. The same applies if you set out your preference for burial or cremation in a contract for cemetery or funeral services. But if you express your preference in another way, such as through a letter or simply telling a loved one, that’s not legally binding (unless the letter is specifically referred to in a will).
Prepare your will
Step 1. Choose your executor
The executor is the person you name in your will to carry out your instructions. They arrange the funeral, locate all of your property, pay any debts, prepare the final tax return, and distribute the rest of the estate as the will specifies.
Technically, there are actually two roles involved. The executor is responsible for administering the estate, and the trustee is responsible for administering any trusts created under the will. The two positions are usually held by one person acting in both roles (or two or more people acting in both roles).
You'll want a responsible and capable person to be your executor. Most people ask a family member or close friend to be their executor. (Your executor can also be a beneficiary under the will. But note if they pay themselves in their role as the executor, and also receive a gift under the will, this may present problems.)
You can also ask a lawyer, a notary public, a private trust company, or the Public Guardian and Trustee (you will need their permission).
We walk you through the things to consider when choosing an executor.
You will also want to have in mind a backup executor in case the person you choose isn't able or willing to do the job at the time. Then the backup can take over.
You may choose two or more people to act together as co-executors. Usually, co-executors must act jointly, unless your will says otherwise. Be aware that appointing more than one executor creates a risk of gridlock; one approach is to name a tiebreaker, to prevent court applications.
Step 2. Decide who you want to give your property to
Your next decision is to choose your beneficiaries. Beneficiaries are the people to whom you give your things.
You may decide to give specific gifts, such as an amount of money, an interest in real property, or a specific item that you give to a person you name. For example, you may decide to give a piece of artwork to a specific relative.
You will also name one or more residual beneficiaries. These are the people who get the residue of the estate. The residue is whatever is left once the executor has paid all debts, expenses, and taxes, and distributed any specific gifts.
You also need to decide on one or more alternate beneficiaries in case your first choice(s) to get the residue of the estate dies before you do or at the same time.
Consider all possibilities
In making your will, turn your mind to possible scenarios that might come into play, even if remote. What if your spouse dies before you? Are you likely to have more children or grandchildren in the future? What do you want to happen if one or more of your children don’t survive you? That is, do you want their share to go to their children, or to the surviving siblings?
Step 3. Decide on a guardian for your children, if applicable
If you have children, your will can make arrangements for them should you and the other parent die before the children turn age 19.
In your will, you can name one or more guardians for any minor children you have. A guardian has the legal authority (and the corresponding duty) to care for the interests of another person. The appointment would take effect if, when you die, there is no living parent and the child is under 19.
You can also provide some money for the guardian to cover the costs of raising the children.
Consider your child’s wishes
Check with an older child about their wishes before deciding on who to name as guardian in your will.
Step 4. Write the will
With good do-it-yourself materials, you can write a simple will. The will can take care of basic concerns, such as leaving a home, investments, and personal items to loved ones.
You can create a simple will with MyLawBC. This website from Legal Aid BC guides you to prepare a simple will by walking you through the key decisions.
Another option for a DIY will is Self-Counsel Press, a publisher of do-it-yourself guides on legal topics, including some guides on preparing a will.
Having your will prepared by an experienced estates lawyer or notary public is the safest way to avoid mistakes. Knowing your will is properly drafted can give you peace of mind. You can be confident your affairs will be handled according to your wishes. As is highlighted here, you won't be around to fix things if there's a problem.
Notaries can prepare simple wills. Getting advice from a lawyer is particularly important when there are features such as a blended family, a charitable gift, property outside of British Columbia, a family business, a desire or need to hold property in trust for someone (such as a minor), or a wish to leave certain people out of your will.
Getting professional help to prepare a basic will isn’t as expensive as you might think. Ask an estates lawyer or notary how much it will cost. You should be able to get some free estimates. Feel free to shop around.
Step 5. Sign the will
For a will to be valid, it must be signed on the last page by the will-maker. You can’t use an electronic will or electronic signature. You must also date the will when you sign it.
(If you can’t sign the will because of illness or disability, you can sign with an X. Or you can ask someone to sign it for you. That person must sign in front of you, and in front of your witnesses. You should show your knowledge and approval of the will when they sign it.)
The signature must be witnessed
You must sign the will (or acknowledge the signature as yours) in front of two witnesses. The two witnesses must then sign the will in front of you. You and the witnesses should initial each page of the will in front of each other.
The witnesses don’t need to read the will. All they need to do is watch you sign your name to it, and sign it themselves in front of you. They should be satisfied you have knowledge of the contents of the will and approve of what it says.
Previously, two witnesses had to be physically present to watch you sign your will, in order for the will to be valid. Now, you and your witnesses can be in each other’s electronic presence. See preparing your will during coronavirus to learn what’s required when a will is witnessed electronically.
Who can be a witness
The two witnesses must be age 19 or over.
It’s good practice for the witnesses not to be people — or the spouses of people — who are executors or beneficiaries under the will. That said, a witness may be able to receive a gift under a will. The witness must apply to court and show you intended to make the gift to them. If the court isn’t satisfied, the witness can’t receive the gift. Either way, the remainder of the will isn’t affected.
Step 6. After signing your will
There are certain things you can do to keep your will safe and make life easier for your executor.
Store your will in a safe place
Under the law, a lost will is considered to have been destroyed and cancelled. You should store the original will somewhere fireproof, waterproof, and tamper-proof.
Tell your executor where you keep your will
Your executor needs to be able to access your original will easily after your death. Also, consider giving them their own notarized copy of the will.
Record what you own and owe
It’ll make life easier for your executor. For example, record your bank accounts, retirement plans, insurance policies, real property, pension benefits, even your air miles and other rewards points. Note any items that are owned in joint tenancy or which name a specific beneficiary. These are dealt with outside the estate, so the executor doesn’t have to manage them.
Document your digital presence
Keep a list of passwords for your social media accounts and other key pieces of your digital presence.
Consider registering your will
You can choose to register your will with the provincial government’s wills registry. While the law doesn’t require this step, it’s a good idea. It lets others know where the original copy of your will is kept. To register your will, you need to file a wills notice with the wills registry. This is a form that says you’ve prepared a will and indicates where it’s kept. You don’t provide a copy of the will to the wills registry, just notice of where it can be found.
Step 7. Review your property that is dealt with outside the will
As described above under what you should know (and in more detail here), a will doesn’t cover everything a person owns. Property you own jointly with another person, such as a joint bank account or a home owned in joint tenancy, isn’t usually covered by your will. It typically goes directly to the other joint owner when you die.
Turn your mind to any property you own jointly with others. Check with your bank to see how your accounts are set up. Make sure your intentions are clear with the bank, as to whether you want the account to go to the other joint owner when you die.
As well, if you have life insurance, or registered retirement accounts such as RRSPs or RRIFs, you probably named one or more beneficiaries for them when you signed the documents. When you die, these assets will go directly to the beneficiaries you named. Check with the financial institution to confirm who you chose as beneficiaries.
Consider naming alternate beneficiaries
As you’re checking on accounts where you’ve named a beneficiary, also ask if you can name an alternate beneficiary. If you don't and the beneficiary you named dies before you or dies at the same time as you, these assets go to the residual beneficiaries you name in your will.
An overview of a simple will
Typically, a will has several sections:
Preliminaries. The will starts by setting out your name and address, followed by a clause revoking any previous wills.
Appointing an executor. The next section appoints one or more executors, who will be responsible for carrying out the instructions in the will. The will should say what the executor can and can’t do.
Distribution of the estate. The will may set out specific gifts, such as an amount of money or a specific item you’re giving to a person you name as a beneficiary. It will also name one or more residual beneficiaries. These are the people who get the residue of the estate. The residue is whatever is left once the executor has paid all debts, expenses, and taxes, and distributed any specific gifts.
Minor children. In your will, you should name one or more guardians for any minor children you have, and provide some money for the guardian to cover the costs of raising the children.
Other details. The will can include other details, as you wish and depending on your circumstances.
Signatures. The last section of the will includes the date of signing and the signatures of the will-maker and witnesses.
"I have no spouse or children of my own. I want to leave my belongings to my niece after my death. In my will, I wrote her full name and relationship to me: '...to give the residue of my estate to my niece, Ada Chen....'"
– Lin, Vancouver
Your instructions in the will should be crystal clear. Avoid vague statements like: “I wish to leave everything to my ‘best friend,’ ‘my cousins,’ or ‘my family members.’”
It’s usually a good idea to say exactly who the beneficiaries are, by name. But consider what will happen if circumstances change. For example, you may say in your will “I give the residue of my estate to my grandchildren Francis and Javier.” If you have more grandchildren, and don’t update your will, your other grandchildren will miss out. You may choose to say “I give the residue of my estate to all of my grandchildren who are alive at the date of my death.”
That said, don’t specify every item you own
You don’t need to write down every item you own. You only need to be specific if you want to give a particular asset (such as your home or an item of sentimental value) to a particular person. Or you may want to leave a specific amount of cash to someone.
"I want my son Michael to get my grandfather’s gold watch which was handed down to me. In my will, I included that gift: '...to transfer my Omega gold watch to my child, Michael Cortez…'"
– Paulo, North Vancouver, BC
Say who gets the residue of the estate
Typically, any other property in the estate is sold. The amount left over from the proceeds of sale is used to pay debts and any taxes owing. Whatever is left over is called the residue of the estate. In the will, you say who gets the residue, and how much.
"In his will, Grandpa gave a $20,000 gift to each of my two brothers. The residue was to go to me. The estate was worth $100,000, so I thought I’d end up with more than my brothers. But it turns out Grandpa had a big tax debt that he never paid. After the executor paid out my brothers’ gifts, the tax debt, and lawyer fees, I was only left with about $5,000 in residue."
– Zadie, Port Hardy, BC
If minor children are beneficiaries
If you name a minor child as a beneficiary in your will, it’s very important to create a trust in the will to hold their gift. Without doing so, the law says their share has to be paid to the Public Guardian and Trustee. The money is then held in trust for them until they’re 19 years old.
By leaving instructions for a trust in the will, you can choose your own trustee to manage the child’s inheritance. The trustee can be the same person you name as the executor (or it can be someone else). You can set out the powers of the trustee, such as to pay out some of the trust funds for special needs, school tuition, and so on.
What if I can’t get my will witnessed?
If witnesses don't sign your will, it isn't a valid will. But the document is still evidence of your wishes. Under this law, a court can rule that an invalid will is fully effective, if they determine it represents your wishes. Even if you can't get witnesses to sign, it's a good idea to make a will.
If you can't get your will witnessed, consider adding a paragraph that states you have not been able to arrange to have your will witnessed, but your will is a true reflection of your wishes and intentions.
How is a will different from a living will?
A will sets out what happens after a person dies to (most of) their property and any minor children.
A living will sets out a person’s wishes in case of illness, injury or disability. For example, it might spell out treatments they don’t want in an end-of-life situation.
In other words, a will impacts what happens after you die. A living will comes into play before you die.
Another key difference is that a will is a legal document, but a living will is not a legally binding document in British Columbia.
There are other legal documents that can be used instead. With an advance directive, you can set out your instructions for end-of-life care. With a representation agreement, you can appoint another person to make health care decisions for you if you can’t make them yourself.
Do I need to write a new will if I move between provinces?
It’s always a good idea to write a new will if you move between provinces. If someone dies in BC but had a valid will in another province, the executor may be able act on the will. But the process may be more complicated.
More broadly, it’s a good practice to review your will and your choice of executor every three to five years or when your circumstances change. For example, it's wise to update your will if a beneficiary dies, underage children become adults, you become a grandparent, or you get married.
Can I change my will?
You can prepare a new will at any time. Or you can change the existing one by signing a separate document, called a codicil. Learn how to change or cancel your will. (It is almost always preferable to prepare a new will if possible.)