Frequently Asked Questions
What is a will?
- A will is a legal document which sets out the will maker’s directions as to who should receive his or her estate upon their death.
- A will exercises the legal freedom to leave the will maker’s estate to people he or she chooses.
- Without a will, the law directs who administers the will maker’s 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 will maker who must be mentally competent and at least sixteen years of age.
- Signing of a will requires the presence of two adult witnesses, both of whom must sign the will in the presence of each other and the will maker.
Who is the executor?
- An executor is the personal representative appointed in a will to look after the will maker’s affairs after his or her death.
- An executor can be any person who is at least nineteen years of age.
- 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 trustworthy.
- In a large or complicated estate, consider the appointment of a trust company as executor.
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 usually include the ability to preserve assets, deal with real estate, invest estate money and settle claims against the will maker’s estate.
- Executor powers should be broad and general.
What are the executor’s duties?
- The executor’s duties include: arranging a funeral, preservation of property, assembling and selling assets, paying taxes and debts, and distributing the will maker’s estate as set out in the will.
- The first duties of the executor are to pay the will maker’s 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 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.
Somebody said that I need a testamentary trust. What is it?
- A trust is an arrangement where money is placed in the hand of a trustee to us it for the benefit of someone else.
- Testamentary trusts are trusts established in a will. They are often used to create ongoing benefits for spouses, minor and/or adult children and disabled beneficiaries.
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.
Can I have more than one will at the same time?
- There are good reasons to have more than one will at the same time. For instance, if the will maker owns property in a different jurisdiction it makes sense to set up a second will that covers the laws in that jurisdiction.
- For large estates, there may be savings possible by organizing the will maker’s estate in different wills.
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.
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.