How to Draft a Will: The 4 Reasons to Draft a Will (Before You Die)

How to Draft a Will: 4 Reasons to Avoid Dying Without a Will

DISCLAIMER

This information is intended for business owners in Canada and serves as general guidance only. Always consult with a qualified advisor before making any legal decision. 

In this article, we’ll cover the following topics:

• Why you should avoid dying without a will

  • You can’t choose how your estate gets distributed

  • You’re leaving behind a big mess for your family

  • You’re giving a tough job to a loved one who doesn’t want it

  • You’re not establishing a guardian for your children (and/or pets)

Before we dive in, an important disclaimer: the following information is applicable only to residents of British Columbia, as it pertains to the provincial legislation of the Wills, Estates and Succession Act.

You can’t choose how your estate gets distributed.

Let’s say you have a spouse, do not have a will, and you suddenly pass away without a will. 

• Your estate would by default go to your spouse. 

• If you have no spouse, your estate would go to your children.

• If you don’t have children, then the estate would go to your parents. 

• If your parents are not alive, then the estate would go to your grandparents, then to your great grandparents, and on and on down the line, becoming ever more complicated. 

Let’s look at another scenario in which you have a spouse and children with that spouse. In this scenario, the first $300,000 of the estate and the family home would go to your spouse, then the remainder of the estate (if there is anything remaining) will be split between your spouse and your children. 

In the final scenario, let’s assume you have a spouse who you’ve divorced, and children with that spouse. In this scenario, $150,00 will go to your divorced spouse, then the remainder of the estate (if there is anything remaining) will be split between your divorced spouse and your children.

Looking at these scenarios, do they accurately reflect your best wishes? In many cases, they won’t. It's easy to see how dying without a will is less than ideal. Without a will, you’re letting the government decide who gets your estate.

You’re leaving behind a big mess for your family.

With so much uncertainty about your wishes for your estate, your next-of-kin would be forced to go through a complicated process of applying to the court and providing notice to everyone who may also be eligible to fulfill the role of administrator / executor. Also, if there’s any sort of disagreement about who should be responsible for distributing your estate – and all too often, there is – it can cause a lot of mental and financial stress for your family.

Your family will be guessing as to what your wishes would have been - with respect to your assets, personal belongings, your funeral wishes, and what care you wish to provide for your children, pets and other loved ones.

You’re giving a tough job to a loved one who doesn’t want it.

If you die without a will, the very challenging job of estate administrator basically goes to the person in your family who’s at the front of the line in accordance with the Wills Estates and Succession Act, and not necessarily because they want to be there. Now that you’re gone, and you have not already established an administrator, it’s possible that the position will be forced upon someone who does not want it (although they can decline).

It’s best to decide in advance who your executor will be. That way, you’ll have an executor who is both ready and willing to accept the heavy responsibilities that come with the role, and you can anticipate what kind of compensation you would offer to them.

You’re not establishing a guardian for your children.

If you have young children, a will is absolutely essential for many reasons, not least of which is the fact that a will can establish a guardian for your children. If a guardian is named in the will, that person would then be able to work with the executor and the trustees in order to properly provide for the children. 

If a guardian is not named in the will, or if the will is not established in the first place, then someone will need to step forward and assume guardianship of your children. This can be a very complicated legal process involving another government body - the Public Guardian and Trustee.

Want to learn more about wills? We’re here to guide you. Help with drafting wills is among the many wills-related services we provide. Contact us today using the below form.